Simple text version follows

United Nations Nations Unies
OFFICE OF INTERNAL OVERSIGHT SERVICES
PROCUREMENT TASK FORCE
This Report is protected under the provisions of
ST/SGB/273, paragraph 18, of 7 September 1994
THE SUBJECT
COMPANY/THUNDERBIRD/PCP
INVESTIGATION REPORT
INTERIM REPORT ON MR. SANJAYA
BAHEL
Report no. PTF-R003/06
Case nos. PTF/026/06; PTF/033/06
This Investigation Report of the Procurement Task Force of the United Nations
Office of Internal Oversight Services is provided upon your request pursuant to
paragraph 1(c) of General Assembly resolution A/RES/59/272. The Report has
been redacted in part pursuant to paragraph 2 of this resolution to protect
confidential and sensitive information. OIOS' transmission of this Report does
not constitute its publication. OIOS does not bear any responsibility for any
further dissemination of the Report.
27 July 2006
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INTRODUCTION........................................................................................................................... 3
ALLEGATIONS ............................................................................................................................. 4
METHODOLOGY .......................................................................................................................... 4
RELEVANT CONCEPTS OF CRIMINAL LAW.......................................................................... 6
Fraud ........................................................................................................................................... 6
Conspiracy .................................................................................................................................. 6
Aiding and Abetting an Offence ................................................................................................. 6
Unlawful Gratuity ....................................................................................................................... 6
APPLICABLE UN RULES AND REGULATIONS...................................................................... 7
UN Staff Regulations .................................................................................................................. 7
Conflict of Interest ...................................................................................................................... 8
BACKGROUND............................................................................................................................. 8
THE RELEVANT COMPANIES ................................................................................................. 10
IT Staffing Contract .................................................................................................................. 11
Subsistence Allowance to the Contract Staff ............................................................................ 13
Article 13, Subsistence of Contractor's Personnel: .............................................................. 14
The Execution of the Contract .................................................................................................. 15
THE SUBCONTRACTS .......................................................................................................... 30
THE KOHLI COMPANIES ..................................................................................................... 39
The Effort to Re-Bid the Contract............................................................................................. 44
The Subject Company's Current Cooperation with the PTF .................................................... 48
STAFF MEMBER 2'S RESPONSE......................................................................................... 49
MR. BAHEL'S RESPONSE..................................................................................................... 49
PTF'S EVALUATION ............................................................................................................. 50
Trigyn Technologies Inc....................................................................................................... 51
Thunderbird Industries LLC Engineering Manpower Contract ................................................ 51
References................................................................................................................................. 61
References in support of the RFP.............................................................................................. 61
Multi-Links ........................................................................................................................... 61
Indo-Kuwait General Trading & Contracting Company ...................................................... 62
VeriSign................................................................................................................................ 63
Marshals Power and Telecom India...................................................................................... 63
Laptop Computer Contract Awarded to the Subject Company................................................. 63
OTHER SUBJECT COMPANY CONTRACT AWARDS .......................................................... 69
Radio Trunking Systems � PD/C0209/00 & PD/C0055/00 ...................................................... 69
Mr. Bahel's Personal Relationship with the Kohlis ...................................................................... 71
THE NEW YORK CONDOMINIUM UNITS ......................................................................... 72
Bahel's Sons Wedding .............................................................................................................. 76
PCP International and the Procurement of Generators.................................................................. 76
RFP 86 ...................................................................................................................................... 77
Use of the London Apartment................................................................................................... 82
RFP 118 � Procurement of Generators ..................................................................................... 84
Bahel's Relationship with the Indian Government........................................................................ 90
FINDINGS .................................................................................................................................... 92
CONCLUSIONS ........................................................................................................................... 94
RECOMMENDATIONS .............................................................................................................. 95
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The following Interim Report sets forth findings of the Procurement Task Force
(PTF) concerning United Nations Staff Member Mr. Sanjaya Bahel, UN vendors
the Subject Company, En-Kay Associates, Guru Trust Investments (GTI),
Thunderbird Industries, LLC (Thunderbird) and PCP International Ltd (PCP).
A subsequent final report will be issued addressing the involvement of Mr.
Andrew Toh, Assistant Secretary General, in these matters as well as the UN
vendor Trigyn Technologies, Inc which currently holds the manpower staffing
contract. The investigation of these matters is ongoing.
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INTRODUCTION
1. The Procurement Task Force (PTF) was created on 12 January 2006 to address
all procurement matters referred to the Office of Internal Oversight Services
(OIOS). The creation of the PTF was the result of perceived problems in
procurement identified by the Independent Inquiry Committee into the Oil for
Food Programme (IIC), and the arrest and conviction of UN procurement
officer Alexander Yakovlev.
2. Under its Terms of Reference, the PTF operates as part of OIOS, and reports
directly to the Under Secretary General of OIOS. The remit of the PTF is to
investigate all procurement cases, including all matters involving the
procurement bidding exercises, procurement staff, and vendors doing business
with the United Nations (hereinafter "UN" or "Organisation "). The mandate of
the PTF also includes a review of some procurement matters which have been
closed, but it is nevertheless determined that further investigation is warranted.
3. The PTF investigations have also focused upon a myriad of individuals and
vendors doing business with the Organisation. Some of these matters are
particularly complex and span significant periods of time. Since its inception,
more than 200 matters, involving numerous procurement cases in various UN
Missions and UN Headquarters have been referred to the PTF. The PTF will
report on matters individually. The PTF has given priority to the matters
involving the eight staff members placed on special leave with pay.
4. A number of the matters set forth herein, including the examination of several
contracts awarded to the Subject Company were the subject of the audit report
of the Internal Audit Division of Office of Internal Oversight Services (OIOS),
AP2005/600/20, dated 26 January 2006. The audit report made several adverse
findings against United Nations Procurement Officer Mr. Sanjaya Bahel, UN
Procurement Officer, in connection with the procurement exercises in the
awards of these contracts to the Subject Company, Thunderbird and PCP.
5. Further, in early April 2006, the PTF was directed by the USG for the OIOS to
reinvestigate all matters concerning the award of contracts to the Subject
Company and Thunderbird. The Subject Company and Thunderbird matters are
interrelated in that the principals of Thunderbird also acted as representatives of
the Subject Company in their interaction with the Organisation. Mr. Sanjaya
Bahel was involved in the procurement exercises associated with both
companies.
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ALLEGATIONS
6. Based upon the audit report, AP2005/600/20, and the referral from the
USG/OIOS, the allegations addressed in this report are:
� Whether Mr. Sanjaya Bahel purposefully and improperly favoured the
Subject Company in the procurement exercises in which the Subject
Company was a participant;
� Whether Mr. Sanjaya Bahel improperly demonstrated favouritism towards
Mr. Nanak Kohli, and his son Mr. Nishan Kohli. Both were
representatives of the Subject Company in their interaction with the UN,
and simultaneously Mr. Nishan Kohli was the Managing Partner of
Thunderbird;
� Whether Mr. Bahel improperly favoured PCP International in its bid to
gain generator contracts with the Organisation;
� Whether Mr. Sanjaya Bahel, purposefully and improperly, favoured
Thunderbird, in their efforts to secure a proposed engineering manpower
contract with the Organisation;
� Whether Mr. Sanjaya Bahel purposefully and improperly, interfered in the
registration of Thunderbird as a UN vendor;
� Whether Mr. Sanjaya Bahel suffered from a conflict of interest as a result
of his personal friendship with Mr. Nanak Kohli and Mr. Nishan Kohli.
Consequently whether he acted in the best interests of the Organisation by
handling, and supporting, procurement contracts involving these
individuals and their associated companies;
� Whether there existed a scheme to defraud the Organisation in connection
with the award of contracts to the Subject Company and Thunderbird.
And, if a scheme existed, who were its participants and what was its
scope. In particular, were UN staff members party to this scheme
METHODOLOGY
7. The PTF has investigated, ab initio, the matters referred to in the audit report,
namely the five Subject Company contracts, the Thunderbird matter, and the
PCP contract, and placed no reliance upon any previous findings. It has
examined other Subject Company and Thunderbird contracts and related issues.
The investigation of the PTF included interviews with relevant witnesses,
examination of documents, and extensive searches of electronic media and
evidence. The PTF made significant efforts to locate and obtain all relevant
files.
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8. The PTF reviewed documents and various portions of files provided by the
Investigations Division of OIOS (hereinafter ID/OIOS); records provided by the
Procurement Department; records produced by the Audit Division, OIOS;
documents provided by the Subject Company and employees formerly
employed by the Subject Company and Guru Trust Investments (GTI); records
provided by the principals of IECS-IRCON, the vendor which held the
engineering manpower contract prior to the re-bidding exercise in 2002;
electronic records including data, telephone records, email correspondence, and
information and evidence provided by the Independent Inquiry Committee into
the United Nations Oil for Food Programme (IIC).
9. PTF investigators interviewed more than 40 witnesses, including former Subject
Company employees, the Subject Company's current representative to the UN
in New York, and senior officials of the company in New Delhi, India. Further
the PTF interviewed UN staff members, in particular procurement officers, and
UN vendors who either preceded, or succeeded, the Subject Company in various
UN contracts. The PTF also reviewed notes of interviews conducted by
Assistant United States Attorneys of various UN staff members in connection
with their investigation of these matters.
10. The PTF has also spoken with a number of present and former employees of the
Subject Company and other companies with which Mr. Nanak Kohli and Mr.
Nishan Kohli are associated, as referred to herein. Several of these witnesses
have expressed concern about being identified by name in this report, indicating
that they fear that they would be subject to retribution and retaliation if the
information they provided was publicly attributed to them. In that regard, these
individuals will be identified as "Informants," and have been promised
anonymity. Their information is included insofar as it has been corroborated
by other witnesses or documents.
11. In connection with the review of the Subject Company contracts, the
investigation has faced the following significant challenges:
12. The PTF sought to speak with Mr. Nanak Kohli and Mr. Nishan Kohli; Mr.
Nishan Kohli retained counsel and did not submit to an interview. The PTF did
not receive a response from Mr. Nanak Kohli.
13. Further challenges included the condition of the procurement files related to this
matter, the procurement department's policy of short term retention of cancelled
bids and the turnover and movement of staff. The Thunderbird procurement file
cannot be located, as well as several portions of the Subject Company file.
Nevertheless, forensic data recovery has been an important tool utilized to
examine the circumstances and the relevant communication on the issue, and
has been instrumental in obtaining relevant information and important evidence.
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14. The PTF sought records from various vendors registered to do business with the
Organisation, including VeriSign Inc. (VeriSign), a Virginia based company.
Further, it requested an opportunity to interview VeriSign employees in
connection with correspondence the company submitted to the Organisation on
behalf of Thunderbird LLC. However, VeriSign, despite representing its desire
to cooperate with the PTF, has failed to produce the requested documents or
make its employee available for an interview.
RELEVANT CONCEPTS OF CRIMINAL LAW
15. The following well established concepts of criminal law of the host country are
applicable to this matter:
Fraud
16. Commonly, fraud is defined as an unlawful scheme to obtain money or property
by means of false or fraudulent pretences, representations, or promises. A
scheme or artifice has been repeatedly defined as merely a plan for the
accomplishment of an object. A scheme to defraud is any plan, device, or
course of action to obtain money or property by means of false or fraudulent
pretences, representations or promises reasonably calculated to deceive persons
of average prudence.
Conspiracy
17. Another concept relevant to the analysis in this matter is the offence of
conspiracy. Conspiracy is simply an agreement to do an unlawful act. It is a
mutual understanding, either spoken or unspoken, between two or more people
to cooperate with each other to accomplish an unlawful act. In this case, it is
the agreement to engage in a scheme to improperly obtain sums of money under
contracts with the United Nations not properly due and owing to them.
Aiding and Abetting an Offence
18. Under the concept of aiding and abetting, the offence is committed by another.
In order to aid and abet a crime, it is necessary that an individual associate
himself in some way with the crime, and that he participated in the crime by
doing some act to help make the crime succeed. A person who aids and abets
another to commit a criminal offence is equally as culpable as if the person
committed the offence himself.
Unlawful Gratuity
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19. It is unlawful to offer or promise anything of value to any public official or
because of any official act performed or to be performed by such public official,
former public official or person selected to be a public official.1
APPLICABLE UN RULES AND REGULATIONS
The following UN Staff Regulations are of relevance:
20. United Nations Staff Regulation 1.2(b) Staff members shall uphold the highest
standards of efficiency, competence, and integrity. The concept of integrity
includes, but not limited to, probity, impartiality, fairness, honesty and
truthfulness in all matters affecting their work and status.
21. United Nations Staff Regulation 1.2(d) states that "[i]n the performance of their
duties staff members shall neither seek nor accept instructions from any
Government or from any source external to the Organisation.
22. United Nations Staff Regulation 1.2(e) states that by accepting appointment,
staff members pledge themselves to discharge their functions and regulate their
conduct with the interests of the Organisation only in view. Loyalty to aims,
principles and purposes of the United Nations, as set forth in its charter, is a
fundamental obligation of all staff members by virtue of their status as
international civil servants.
23. United Nations Staff Regulation 1.2(g) states that Staff members shall not use
their office or knowledge gained from their official functions for private gain,
financial or otherwise, or for the private gain of any third party, including
family, friends and those they favour. Nor shall staff members use their office
for personal reasons to prejudice the positions of those they do not favour.
24. United Nations Staff Regulation 1.2(i) states that Staff members shall exercise
the utmost discretion with regard to all matters of official business. They shall
not communicate to any Government, entity, person or any other source any
information known to them by reason of their official position that they know or
ought to have known has been made public, except as appropriate in the normal
course of their duties or by authorization of the Secretary-General.
1
It is unclear whether or not a United Nations Staff Member would fall under the definition of "public
official" for purposes of US federal law.
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Conflict of Interest
25. United Nations Staff Regulation 1.2(m) states that "Staff members shall not be
actively associated with the management of, or hold a financial interest in, any
profit-making, business or other concern, if it were possible for the staff
member or the profit making, business or other concern to benefit from such
association or financial interest by reason of his or her position with the United
Nations.
Other relevant instructions include:
26. If any evidence of receipt of a bribe or gratuity is revealed during the course of
this investigation Federal and State laws will apply and therefore a referral to
the appropriate prosecutorial agency will be recommended.
27. Procurement Manual Section 4.2.5 "Corrupt Practices". The United Nations
shall communicate to the vendors during the registration phase, in the
solicitation documents and in the contract documents that all United Nations
vendors shall adhere to the highest ethical standards, both during the bidding
process and throughout the execution of a contract. Some examples of "Corrupt
Practices" are Bribery, Extortion or Coercion, Fraud and Collusion.
28. On 25 March 2003, the then UN Chief of Procurement issued a Memorandum
addressing Conflict of Interest. Paragraph 4 of the memorandum states that
"UN Procurement Division staff shall avoid conflict of interest situations.
Conflict of interest includes circumstances in which a UN staff member would
appear to benefit improperly, or allow a third party to benefit improperly, from
their association in the management or the holding of a financial interest in an
enterprise that engages in any business or transaction with the Organisation."
29. Paragraph 5 provides that "UN Procurement Division staff shall avoid assisting
private bodies or persons in their dealings with their Organisation where this
might lead to actual or perceived preferential treatment. This is particularly
important in procurement matters."
BACKGROUND
30. This matter has a lengthy procedural history. Several IAD/OIOS audits and an
ID/OIOS investigation have been conducted of topics addressed herein. The
audits found critical errors in the procurement processes and more than one
report found misconduct by Mr. Bahel. The ID report of 15 December 2004
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cleared Mr. Bahel of wrongdoing. It should be noted that the PTF has not been
influenced by the conclusions set forth in these reports, but has considered the
analysis. PTF investigators have read, and considered, all previous reports,
memoranda, and notes of interviews conducted in previous investigations for
lead and investigative value. However, the PTF has not subscribed any
particular merit to any allegation, or any previous finding.
31. This Report focuses upon the following procurement exercises, and the
performance of the vendors, with respect to, the following contract awards:
1) a contract awarded to the Subject Company for information
technology (IT) staffing support (PD/0049/00)
2) a proposed contract for engineering manpower to Thunderbird
LLC (RFPS 374)
3) a contract awarded to the Subject Company for desktop
computers (PD/202/00)
4) a contract awarded to the Subject Company for Radio telephone
links (PD/209/00)
5) a contract awarded to the Subject Company for laptop computers
(PD/155/02)
6) a contract awarded to the Subject Company for satellite test
equipment (PD/535/00)
7) a contract awarded to PCP International for generators
32. The total aggregate value of all of the contracts awarded to the Subject
Company between 1999 and 2004 exceeded US $100 million. The value of the
contract awarded to PCP International (PCP) had an aggregate value of
US$9,900,000. The IT Staffing Contract exceeded $27,000,000. The
participation by Nanak Kohli and Nishan Kohli in the procurement and
execution of these contracts, as well as Procurement Officer Sanjaya Bahel, will
be discussed throughout the report. These contracts will be discussed
individually, seriatum.
33. Sanjaya Bahel joined the United Nations Procurement and Transportation
Division as Acting Chief of Field Missions Procurement Section on 10 August
1995. Beginning in or about 1998 and continuing through and until 2003, Mr.
Bahel served as Chief of the Commodity Procurement Section. In 2003, on the
recommendation of Andrew Toh, the then Director of Facilities and
Commercial Services Section, Mr. Bahel was re-assigned to Chief of the
Commercial Activities Service in the UN Postal Administration, where he
served until he was placed upon special leave. Mr. Bahel frequently served as
Acting Chief, or Officer in Charge, of the Procurement Department in the
absence of the Chief.
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34. Prior to joining the United Nations, Mr. Bahel worked for the Government of
India in various capacities, including Assistant Financial Advisor in the
Ministry of Finance; Director of Purchase for the Indian Embassy in
Washington, D.C.; Deputy Controller General for the Ministry of Defence;
Directory of Finance in the Ministry of Defence; and Controller/Additional
Controller General in the Ministry of Defence.
35. A full recitation of all of the facts and circumstances surrounding these matters
is provided to set forth the extent of the role and level of participation of Mr.
Bahel in these transactions. Therefore, the matters will be discussed in detail.
THE RELEVANT COMPANIES
36. At all relevant times, the Subject Company was fully owned by the government
of India. Nanak Kohli, and his son, Nishan Kohli, represented the Subject
Company with the United Nations as their agents, but were not the Subject
Company employees. At all relevant times, Nishan Kohli and his brother,
Ranjit Kohli, also served as Managing Partners of Thunderbird Industries LLC
(Thunderbird). Further, Nanak and Nishan Kohli, either individually or
together, served as principals or officers in several other related companies
relevant to these inquiries, including Guru Trust International (GTI), En-Kay
Associates (En-Kay) and Acumen International (Acumen). Nanak Kohli is a
citizen of India and a well known public figure in India. Nishan Kohli is Nanak
Kohli's son, and a citizen of the United States. Thunderbird was, and continues
to be, a U.S. corporation, based in Virginia, with offices in New York City,
McLean, Virginia and a branch in New Delhi, India. As discussed in more
detail below, Ranjit Kohli served as an officer in VeriSign, Incorporated
(VeriSign), a U.S. company which provided a reference for Thunderbird in its
effort to achieve the engineering manpower contract. (Neither Thunderbird, nor
Nishan Kohli advised the Organisation of this fact despite utilizing the company
as a reference).
37. According to the Subject Company representatives, the Subject Company
severed its relationship with the Kohlis and GTI in 2003 because of the failure
of the Kohlis to honour the obligations under the IT Staffing Contract, as
discussed below, and is now critical of the Kohlis' activities. The relationship
between the Subject Company and the Kohlis, and the relationship between the
Kohlis and Mr. Bahel, is significant and discussed herein.
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IT Staffing Contract
38. The first contract addressed in this Report is the contract on behalf of DPKO for
communications and information technology staffing. The contract was
awarded to the Subject Company in early 2000.
39. The issues addressed in this Report in connection with this Staffing Contract
include the failure to pay full subsistence allowance, the failure to disclose sub-
contracting agreements to the Organisation, and the failure to provide required
benefits to contract staff. The discussion will also focus on the ability of PD to
have identified the issues and prevented much of the problems which arose.
Lastly, the Report will cover Mr. Bahel's involvement in the Staffing Contract.
At that time, Mr. Bahel was Chief of Field Procurement, and at times acted as
Officer in Charge of Procurement.
40. In 1998 the Organisation established a number of new Peacekeeping Missions,
and DPKO was in need of engineering and IT manpower support in several of
them. As such DPKO sought a contract for IT manpower, and in the fall of
1999 the Subject Company submitted a proposal for, and ultimately obtained, a
contract from the Organisation for the provision of communications and
information technology technicians (IT staffing contract) (#PD/CO0490/00).
The IT staffing contract was requisitioned at the request of the Department of
Peacekeeping Operations (DPKO), Field Administration and Logistic Division
(hereinafter "FALD").
41. The evolution of the contract, and the issues which emerged during the course
of its execution follows. On 29 July 1999 FALD submitted to PD a draft
Request for Proposal (RFP) for staffing support for various Field Missions.
FALD sought a one year contract where the UN would order technicians for a
period between three months and one year. On 13 October 1999, PD issued the
RFP and sent it to registered vendors. Six vendors submitted proposals. In
November 1999 FALD performed technical evaluations of the proposals, and
deemed five to be compliant. FALD sought to utilize more than one vendor,
and sought to award multiple contracts based upon a concern that it have
qualified staff for prompt deployment to the field missions, as well as that it
have a steady supply of able and qualified workers from which to choose.
42. In a memorandum dated 26 November 1999 to Mr. Bahel, Rudy Sanchez, Chief
of FALD, represented that after a review of sample Curriculum Vitae (CVs) of
prospective workers provided by vendors, FALD recommended the award of
contracts to two lowest bidders in each category of technicians sought. Mr.
Sanchez reasoned that this approach would provide the ability of the Missions
to draw on a second supplier if the first vendor is incapable of adequate
performance, or there was an insufficient quantity of workers.
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43. On 30 November 1999 Mr. Bahel denied FALD's request, stating that
"reasoning put forth for awarding two contracts for each category are not only
extraneous to the technical issues but to the RFP itself." Assuring FALD that
adequate safeguard had been already incorporated into the RFP, Mr. Bahel
indicated his intention to proceed with the presentation of the case to the HCC
based on the commercial evaluation.
44. On 6 December 1999 Hocine Medili, then Director of FALD, issued a
memorandum to Andrew Toh, Chief of Information Management Services
Branch, reiterating FALD's position that the "lowest two bidders in each
category be granted an award." While acknowledging the ability of the
performance bond to protect the commercial aspects of the contract, FALD
expressed a view that PD failed to address the concerns raised by FALD.
45. Nevertheless, in his memo to FALD of 10 December 1999 Mr. Bahel offered
assurances that prompt action would be taken to ensure a sufficient number of
qualified staff in the event that such needs arose. Based upon such assurances,
FALD agreed to utilize one vendor. In its memo of 5 January 2000 FALD
confirmed Mr. Bahel's representations. On the basis of this understanding,
FALD submitted to PD its projected requirement for staffing support for a one-
year period in furtherance of the expected presentation of the matter to the
Headquarters Committee on Contracts (HCC).
46. On 8 February 2000 PD recommended the award of a three-year systems
contract for the IT staffing support, and PD presented the case to the HCC. The
official minutes of the HCC meeting demonstrate that PD and FALD
recommended the award of the contract, valued at $7,858,764, to the Subject
Company on the basis of lowest cost proposal.
47. The record further shows that during the deliberations the HCC questioned the
ability of the Subject Company to provide the services it offered, and sought
assurances that the Subject Company was a sound company. The HCC
expressed a concern that the selection was premised solely upon that the Subject
Company offered the lowest cost to the Organisation. As discussed herein, the
concerns expressed by the Committee proved to be well founded when issues
with Mission Subsistence Allowance (MSA) payments, employee driving
ability, and delays with deployment of personnel arose in the fall 2000.
48. Furthermore, the HCC commented on the issue of subsistence payments to
workers, noting that the "UN needs safeguards that minimum labour standards
are met." The HCC also "expressed concern about payments going directly to
the company and DSA costs." Taking note of the FALD's contention that the
arrangement of this scope had not occurred in any other mission, the Committee
recommended that PD confer with the Office of Legal Affairs (OLA) to address
personnel issues, humanitarian concerns, and administrative issues.
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49. At the time the case was presented to the HCC, it is now evident that the HCC
was not made aware of the fact that MSA-related issues arose in the course of
implementation of the IRCON contract which were known to the Organisation,
including PD, and the HCC was not advised of PD's intention to structure the
new systems contract along the same terms as the one in place with IRCON.
Mr. Bahel participated in the execution of the IRCON contract, and had to have
been aware of such problems.
50. It is now evident that the HCC members were not informed of FALD's desire to
award the contract to two vendors, and the procurement department's opposition
to it. FALD shares some responsibility for the failure to raise this issue in the
HCC meeting, as it clearly should have been done. It is important to note,
however, that after operational problems with the Subject Company emerged,
similar requests by FALD in October 2000 and January 2001 to bring in
additional vendors to "meet the operational requirements of the missions" were
again denied by PD.
51. Despite its reservations, the Committee recommended the award of the contract
to the Subject Company "in the total not-to-exceed amount of $7,858,764, the
lowest cost acceptable proposal. (The contract with the Subject Company was
extended, and ultimately the Organisation paid the Subject Company more than
$27 million for providing IT staffing support to the Organisation's
peacekeeping Missions. As later explained, the Subject Company passed on
most of these funds to GTI, who significantly short-changed the contract staff.)
52. Three days later, PD received an expedited approval from the HCC secretariat
and, on 15 February 2000 a Letter of Award under Sanjay Bahel's signature was
sent to the Subject Company office in India. On 23 March 2000 Mr. Bahel
forwarded to Bruce Rashkow, Director of General Legal Division, a draft of the
Contract and supporting documents, requesting an expeditious review in light of
"FALD's urgent requirement for the Subject Company's consultants in
UNMIK."
53. In the same memorandum, Mr. Bahel reminded OLA that the draft the Subject
Company contract was tailored along the lines of the IRCON contract. Mr.
Bahel, however, failed to advise OLA of the problems which arose during the
execution of the IRCON contract, namely that the disbursement amounts of
MSA to the personnel in the field was a problematic issue.
Subsistence Allowance to the Contract Staff
54. An important provision in the Subject Company Contract was the provision
addressing the subsistence allowance for the contract staff. The contract
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provided that subsistence must be paid to the contract staff at a rate equivalent
to that paid to UN employees in the Missions. This amount was a significant
portion of the man day rate the Organisation paid to the Contractor for each
worker supplied to the Missions. (As discussed more full below, this constituted
approximately half of the amount paid by the Organisation to the contractor per
worker per month.) The contract provided:
Article 13, Subsistence of Contractor's Personnel:
[T]he Contractor shall be responsible for making suitable
arrangements for the general welfare, including food and lodging,
of the Personnel. . . [T]he UN shall reimburse the Contractor, in
respect of each of the Personnel, an amount equal to the equivalent
food and accommodation components of the UN Mission
Subsistence Allowance (MSA) or Daily Subsistence Allowance
(DSA), as the case may be, (herein referred to as "Subsistence
Amount").
55. This provision was designed to achieve the same function as the UN Mission
Subsistence Allowance (MSA) and the UN Daily Subsistence Allowance (DSA)
provided to UN international staff serving in the Mission, in which staffing
support is performed by such personnel. The contract required that the living
expense amounts "shall be payable at the lower of the two rates applicable to
such Mission. The combined payment for each worker per month was between
$8,000 and $9,400, approximately half of which was intended to cover the MSA
portion of the contract.
56. OLA later found the provision to be clear and unambiguous, requiring the
contractor to pay its staff at the UN rate regardless of the costs for subsistence
borne by the Subject Company. (The provision is "clear and [does] not leave
room for interpretation." There is also no further provision in the Contract that
would suggest that subsistence amounts are not payable at the established
contract rate in the event they prove to be materially higher than the actual costs
incurred by the Subject Company).
57. Further, the Contract provided for subsistence allowance to the Subject
Company staff to be paid to the Contractor only. The original text of this
section, however, had offered flexibility and had permitted the Chief
Administrative Officer in the Mission (CAO) at his/her discretion to provide
subsistence facilities to the Subject Company employees in lieu of the MSA
payment. Nevertheless, subsequent changes to the contract in January 2001, at
the insistence of the Vendor, removed that flexibility. After January 2001
Article 13.1 read as follows:
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The Contractor shall be responsible for making suitable
arrangements for the general welfare, including food and lodging,
of the Personnel. . . [T]he UN shall pay the Contractor, in respect
of each Personnel, an amount in account of the living expenses of
such Personnel (such amount hereinafter the "Living Expense
Amount). .... It is expressly understood between the Parties
that the Living Expense Amounts shall be payable to the
Contractor only.....The applicable Living Expense Amounts shall
be included in the Contractor's invoices. [Emphasis added].
58. Another significant provision of the contract was the prohibition against further
sub-contractual agreements without notice to, and consent of, the Organisation.
The UN General Conditions of Contract, Paragraph 5.0, appended to the
contract, provided that:
In the event that a contractor requires the services of
subcontractors, the contractor shall obtain the prior written
approval and clearance of the United Nations for all
subcontractors. The approval of the United Nations of a
subcontractor shall not relieve the contractor of any of its
obligations under this contract. The terms of any subcontract shall
be subject to, and conform with, the provisions of this contract. 2
The Execution of the Contract
59. Problems quickly emerged in the execution of the contract, and the two key
components of the contract � namely the failure to disclose sub-contracts and
the requirement for MSA payments to be made to the contract staff � were
violated near the inception of its execution.
60. Technicians first began to arrive in late August 2000. The deployment of
technicians was complicated in part by the failure of some to pass the UN
driving test (despite a requirement in the contract that the staff have "a
mandatory valid driver's license"). As of 1 February 2001 the Subject Company
fell short of the required staff, providing just 101 of the required 170 technicians
requested.
61. Almost immediately upon deployment to the field contract employees began to
complain that they were not receiving the subsistence allowance. The failure to
provide subsistence funds resulted in the inability of workers in many cases to
2
The General Terms are appended to all contracts. Paragraph 6.0 provides that "[t]he contractor warrants
that no official of the United Nations has received or will be offered by the contractor any direct or indirect
benefit arising from this contract or the award thereof. The Contractor agrees that breach of this provision
is a breach of an essential term of this contract.
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pay their hotel bills or buy food. Most notably, it is now evident, as discussed
in detail below, that there was an intentional failure to provide the technicians
with subsistence allowance as required under the contract.
62. For example, on 19 September 2000 a petition by several of the contract staff
was submitted to the Subject Company's Chairman and Managing Director in
New Delhi, G.S. Chauhan, raising the issue, and requesting payment of MSA to
the contract staff. In the letter, the petitioner, Mr. Vijendra pal Bansal,
represented that the Mission itself had advanced contract staff sums of money to
allow the contract employees to pay their hotel bills and food expenses.3 The
contract staff requested that the UN pay them directly as a result of the failure
by the Subject Company to make these payments as required under the contract.
Instead of paying the contract staff, the position of the company was that UN
Missions were violating the contract by paying workers directly.
Figure 1
63. Complaints from the Subject Company's technicians about the lack of a
subsistence allowance were quickly presented to UN administrative staff in the
missions, particularly MONUC, including the Chief Communication Officer.
The complaints also quickly reached UN Headquarters, in particular, the
Director of FALD, and supervisory officials in the PD by October 2000. By
late October, early November, 2000, senior managers in the PD were made
aware of the issues and their participation in rectifying the situation was sought
by FALD and MONUC's resident auditor, who was looking into the issues.
3
Letter to G.S. Chauhan through M.P. Singh (Subject Company Coordinator), 19 September 2000.
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Figure 2
64. Complaints also reached United Nations procurement officer Kanwarjit
Sachdeva as early as 6 October 2000. Mr. Sachdeva inquired of the Subject
Company officials about the issue. The Subject Company representative "N.
Singh" wrote to Mr. Sachdeva and assured him that the contract staff was being
paid. In referring to the contract staff's claims of the Subject Company's failure
to pay subsistence, N. Singh wrote "[t]hese allegations are certainly very serious
however we feel that they are unfounded." Mr. Singh assured that the matter
would be "thoroughly investigated."4
65. However, the PTF investigation has revealed that the contract staff was
continuously deprived of MSA allowance and that no sincere effort was made
by those acting on behalf of the Subject Company to remedy the situation.
66. On 9 October 2000 Mr. Roy Joblin, Communication Officer, FALD, UNMIL,
sent an email to N. Singh emphasizing once again that contract staff had yet to
receive salary payments.
4
6 October 2000 email from N.Singh to Kanwarjit Sachdeva at sachdeva@un.org.
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Figure 3
67. In response, the Subject Company's representative, N. Singh, falsely
represented to the Organisation that contract staff was being paid full
subsistence allowance. On 11 October 2000 Mr. N. Singh wrote to Mr.
Sachdeva claiming that the failure to pay the contract staff in UNMIL was a
result of "a mistake in a banking transaction which caused a delay in receipt of
their allowance." He represented to Mr. Sachdeva that senior executive "U.B.
Singh" was travelling to MONUC to investigate the matter, and assured that
contract staff was being paid.
Figure 4
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68. Meetings concerning the issue between the Subject Company contract staff and
U.B. Singh took place on 12 and 13 October 2000. However, on 13 October
2000 the staff wrote to the UN's Chief Communications Officer in the Mission
and stated that they had met with the Subject Company's U.B. Singh and he
"has failed in resolving the above mentioned impending issue." The contract
staff asked the Chief Communications Officer to intercede.
Figure 5
69. On 17 October 2000 the Chief Communications Officer in MONUC authored a
"Note to the File" setting forth his concerns about the issue and memorializing
his view that the Subject Company was failing to honour its obligations under
the contract to pay subsistence, and his belief that the Subject Company was
discharging contract staff who complained about the failure to receive it.
70. Mr. McNally expressed opposition to the Subject Company's effort to remove
technicians who were complaining of a lack of subsistence payments:
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Figure 6
71. On 23 October 2000 the Officer in Charge of Administration (OIC) in MONUC
wrote to the Director of FALD in UN Headquarters in New York outlining the
issue of the Subject Company's failure to pay MSA to its contract staff and
informing him that the visit of "Mr. U.B. Singh" was "not reassuring." The
OIC further requested that the Mission be allowed to pay the contract staff
directly, and that the Organisation then deduct such payments from the amounts
paid to the Subject Company, and that the Organisation require proof that the
Subject Company was making the payments prior to any discharge of funds by
the Organisation to the Subject Company:
Under the circumstances, and due to the fact that the Subject
Company has not shown an intention to resolve this issue
positively, MONUC administration strongly recommends
FALD's concurrence to proceed locally with payment of the
food portion only of the MSA to contract personnel serving
in Kinshasa, and to the subsistence allowance, which is
composed of the food and accommodation portion of the
MSA i.e. 85 % of the private accommodation rate of the
MSA to contract personnel deployed in the regions. The total
amount to be deducted from contract with the Subject
Company.
72. On 25 October 2000 the OIC further wrote to the Director of FALD, Mr.
Hocine Medili, advising him of the problems associated with the Subject
Company's failure to pay MSA and informing him that "three (3) Subject
Company technicians currently deployed in Kinshasa have to be lodged
(makeshift arrangements) with OIC-Communications due to their lack of funds
to pay for their own accommodation." Similar complaints were made by the
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Subject Company contract staff in UNMIK and UNTAET. Further, Missions
were paying short term accommodation expenses for the Subject Company
contract staff who had been let go by the Subject Company and were being
repatriated to India.
73. On 30 October 2000 Rudy Sanchez, Chief of FALD, wrote to John Mullen,
Chief of Headquarters Procurement, advising him of the problem and attached
the memos dated 23 October 2000 and 25 October 2000, referred to above.
Figure 7
74. The PD forwarded emails from the missions to N.Singh. However, rather than
rectifying the situation, N. Singh complained of the Mission's initiative to pay
contract staff directly. On 1 November 2000 N. Singh sent an email message
from email account @rcn.com to Andrew Toh, complaining that the Missions
were paying the Subject Company staff in cash, directly, "without
authorization." Mr. Singh complained about such efforts by administrative staff
in the Missions stating that "Subsistence Allowance . . . is an internal matter for
the Subject Company."
75. Mr. Singh further stated that "[b]y paying cash and now our Staff are not
opening bank accounts may lead to serious violations of local laws. We will not
be a party to it. It will otherwise amount to aiding and abetting our Staff to
indulge in violations." The same day Mr. Toh directed Mr. Bahel to "deal with
it." (As discussed below, Mr. Toh and Mr. Bahel agreed with the Subject
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Company that the matter was an internal one for the Subject Company, a
position with which OLA agreed).
76. Nevertheless, the Subject Company officers continued to represent contract staff
were being paid the required MSA amounts. On 3 November 2000 G.S.
Chauhan, on behalf of the Subject Company, tried to allay the Organisation's
concerns and falsely represented to Mr. Sachdeva that its personnel were
Government employees. However, Mr. Chauhan failed to acknowledge that the
contract had been sub-contracted by the Subject Company to GTI, a privately
held entity. As such, the contract staff was in fact not Government of India
employees, and the contract between the contract staff and the sub-contractors
did not provide for the benefits which Mr. Chauhan assured in his
correspondence existed. Further, Mr. Chauhan falsely represented that the
company was bound to pay, and in fact did pay, the workers the required
subsistence allowance.
77. On 6 November 2000 Sanjaya Bahel, the then Officer-in-Charge of the
Procurement Division, wrote to Mr. Phelan, the Chief of FALD and represented
that he had received "confirmation" from the Contractor (the Subject Company)
that sufficiently convinced him that MSA payments were being made. Mr.
Bahel stated that in light of that fact "FALD may wish to inform its Missions to
handle and manage the contract with caution. If obvious and verifiable abuse is
noticed then UNHQ should rightly be informed so that the Contractor is
required to rectify the same. It is suggested that the Subject Company staff must
first be encouraged to resolve problems with the Contractor."
Figure 8
78. In fact, Mr. Bahel went so far as to criticize FALD for the Missions' advance of
funds to the contract staff who could not afford housing. Mr. Bahel stated "this
is in direct violation of the Contract . . . and it is recommended that
administrative action be taken to preclude a recurrence of such payments."
However, no serious criticism was voiced, or action taken, either by Mr. Bahel
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or at his direction, against the vendor which converted sums due and owing
contract staff to their own use.
79. By that time, it was already well documented and confirmed by UN staff in the
Missions that MSA had not been paid to the proper extent. Therefore, Mr.
Bahel all too quickly accepted the representations of the Subject Company,
which the investigation has proved to be false. When asked by the PTF
investigators why he did not take any action against the vendor, Mr. Bahel
responded that he "is not an investigator," and that representations that
payments were being made should be accepted, and not assumed to be untrue.
While Mr. Bahel may not have been required to conduct an "investigation,"
nevertheless the failure to consider evidence from fellow UN staff which
contradicts assertions he accepted as true, is inappropriate. Mr. Bahel should
have caused an investigation to be launched, and supported it, rather than accept
such patently questionable representations at face value. (In the interview with
the PTF investigators Staff Member 1 indicated he would have terminated the
contract if he had been made fully aware of the problems with the contract
addressed herein). In addition, Mr. Bahel's position is tenuous in light of his
close relationship with Nanak Kohli, as uncovered by the PTF investigation.
This relationship will be described in much more detail below.
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Figure 9
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Figure 10
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80. In November 2000 the resident auditor who began to review the contract
complained to Mr. Bahel that the grievances of contract staff were meritorious,
and that action should be taken against the Subject Company for breaches of
their contractual obligations. Both Mr. Bahel, and then later, Mr. Toh, criticized
the auditor, and asserted that the auditor's conclusion that the failure to pay
MSA and to disclose sub-contracting amounted to a breach of the Subject
Company's obligations under the contract was erroneous. Mr. Toh even went
so far as to complain to the auditor's supervisor that the auditor exceeded his
authority in challenging the contractor and providing his view of the failure of
the contractor to comply with its obligations under the contract. Both Mr. Toh
and Mr. Bahel were of the view that the auditor acted improperly. The auditor
should have been lauded, not criticized.
81. The debate continued into the next year. In a memorandum from Andrew Toh to
Esther Stern of 29 January 2001 Mr. Toh had claimed that subsistence had been
taken care of. Mr. Toh then falsely asserted that:
PD was not earlier informed by MONUC that contractor's
personnel were not being provided with subsistence facilities. The
contractor also states that they were not informed of the problem
before cash advances were given to their personnel by the Mission.
. . PD has confirmed with the Contractor regarding comments on
En-Kay Associates and are informed that the entity mentioned is a
recruiter for the Contractor and not a sub-contractor (copy of
communication attached).
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Figure 11
82. Notwithstanding this dispute, the Missions' expressions of concern of the
Subject Company's performance continued into December 2000. On 20
December 2000 Rudy Sanchez wrote to Mr. Bahel and complained that the
Subject Company staff was more than 50 days late in arriving in UNMEE,
noting that three deadlines had passed without any staff deployments by the
Subject Company. Mr. Sanchez stated:
Figure 12
83. On 30 January 2001 the contract staff in the Missions wrote to Andrew Toh. A
staffer in UNMIK wrote:
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Figure 13
84. Upon receipt, just one half hour later Mr. Toh forwarded this message to
Messrs. Sachdeva and Bahel and stated: "The Subject Company has to stop this
internal bleeding �NOW . . . ." The PTF investigation has not revealed that any
action was taken to rectify the situation.
85. On 9 January 2001 Mr. Phelan, Chief of FALD, wrote to Mr. Bahel and
requested that additional vendors be solicited to supplement the contract staff
currently at the Mission:
Figure 14
86. It is significant to note that contrary to his guarantees to FALD during the
review process, Mr. Bahel failed to honour his pledge.
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87. The PTF has identified an email message, dated 14 February 2001, from a
FALD official in UNMIK reflecting efforts by DPKO to attempt to re-bid the
staffing contract in the wake of these problems associated in the implementation
of the Subject Company contract.
Figure 15
88. However, no such re-bidding exercise was ever launched, or even proposed by
PD. To the contrary, the complaints of the contract staff, brought to light by
both the employees and officials of FALD, reached deeper into the Organisation
in 2001 without remedial action.
89. By summer 2001 the issue rose to higher levels in the Organisation. On 2
August 2001 Dileep Nair, the then Under-Secretary General of OIOS wrote to
the Ambassador of India seeking the Permanent Mission's assistance in
investigating the claims of the contract employees of the Subject Company.
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Figure 16
90. A copy of the letter was retrieved from the office of Andrew Toh during a
search by PTF investigators. The copy in Mr. Toh's office included the
handwritten notation attached to the upper left hand corner of the document:
"Mr. Bahel," and "confidential info" under the line. However, it appears that no
sufficient action was taken despite these serious allegations, and repeated
requests.
THE SUBCONTRACTS
91. The PTF's investigation has revealed that at the time the Subject Company
received the contract award from the Organisation, it entered into a sub-contract
with GTI, a company that have purported to be "headquartered" in Vienna,
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Austria. The PTF investigation has revealed that GTI also maintains an office in
India, which is located at the En-Kay Associates address in New Delhi. As set
forth above, U.B. Singh was an officer in En-Kay, and a brother of Nanak
Kohli. The PTF investigation has revealed that Nanak Kohli, a/k/a N.Singh, was
associated with both companies.
92. There is a serious question whether GTI is a legitimate company. The results of
the investigation cast serious doubt upon this issue. Upon learning of the
assignment, on 30 August 2002 UN Procurement officer Walter Cabrera
conducted a review of GTI. Mr. Cabrera accessed Dun & Bradstreet, and found
no information on the company. On 12 September 2002, in connection with
notice of the increase of NTE for the Subject Company's contract, Mr. Cabrera
sent an email to Nishan Kohli, the subject heading of which read: "Urgent--
Company Registration of Guru Trust Investments." Mr. Cabrera requested
immediate disclosure of "registration data of the recruiter/subcontractor,"
referring to GTI.
93. On 27 September 2002 Nishan Kohli replied, and asserted that GTI was a
limited liability company established in Curacao in 2000, had offices in New
Delhi, India, and was headquartered in Vienna, Austria "courtesy of Anglo Irish
Bank, c/o company trustee at Rathausstrasse 20, PO Box 306, Vienna, Austria
1011." The PTF's investigation has revealed that GTI's representation that it
had been associated with Anglo Irish Bank in Austria is false. The Bank
informed the PTF investigators that the Bank did not hold any relationship with
GTI at any time. The Bank added "[w]e were not aware that our address is used
by this company. The use of our address is not permitted and is illegal."
Figure 17
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94. Further, the address provided to PD by GTI was the Vienna "headquarters"
address of the Anglo Irish Bank. However, as set forth below, the PTF has
identified that the company has an address in India at 101 Surya Kiran, 19
Kasturba Gandhi Marg, New Dehli, India 110001. This address is also shared
by En-Kay Associates, the entity to whom GTI assigned the United Nations
contract to, and by Thunderbird Industries India (a subsidiary of Thunderbird
Industries LLC), another Nishan Kohli company.
Graph 1
95. It is also clear from the PTF's investigation that Nanak Kohli and GTI utilised
En-Kay in connection with the contract since its inception. The investigation
has confirmed that the Subject Company failed to provide notice of this sub-
contract to the Organisation until January 2002. Furthermore, the Subject
Company never sought prior approval of the United Nations for this agreement.
96. The PTF investigation has discovered documents between En-Kay and deployed
staff, which reference the Subject Company contract with the Organisation. In
addition, the obtained agreement describes the relationship between En-Kay and
the Subject Company as that of "associates." The precise nature of the
relationship remains unclear.
97. Based on the documents obtained thus far by the PTF, GTI, first assigned the
contract staff to En-Kay Associates in 2000, and then took it over in
approximately mid 2001. The PTF has obtained copies of the contract staff
agreements which clearly state that the obligations to perform the IT staffing
services in the various UN Missions were administered by En-Kay and later on
by GTI, itself.
98. The PTF has received copies of the agreements between GTI, En-Kay
Associates and their contract staff, from various sources, including informants
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and contract staff hired by GTI to provide IT staffing to the UN Missions.
Notice of the assignments was never provided to the Organisation, or was the
Organisation's approval sought prior to execution.
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Figure 18
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99. The Subject Company representatives have recently acknowledged to the PTF
that the company entered into such an agreement with GTI because it had little
experience with the UN, and was in need of guidance and direction in
performing contracts for the Organisation. The Subject Company has further
represented to the PTF that it was aware that Mr. Nanak Kohli was a principal
of GTI, and believed at the time that he would be responsible for representing
the Subject Company's interests. The company had further conceded that Nanak
Kohli used the alias N. Singh when communicating with the Organisation, a fact
Mr. Bahel acknowledged to the PTF as well.
100. According to the Subject Company, the company divested all of the Subject
Company's authority and responsibility under the IT Staffing Contract with the
Organisation to GTI, and the Subject Company remitted to Mr. Nanak Kohli
and GTI between 80% and 90% of the sums paid to it by the Organisation.
Documents provided by the Subject Company confirm this fact.
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Figure 19
101. The Subject Company representatives were also presented with correspondence
from N. Singh on the Subject Company letterhead utilized by him to
communicate with the PD. The Subject Company unequivocally stated that
Nanak Kohli had no authority to write to the Organisation on its letterhead, and
offered that several of the letters failed to bear authentic headings.
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Figure 20
FAILURE TO PASS ON FULL MSA PAYMENTS
102. In July 2000 En-Kay paid to the Subject Company contracted personnel a lump
sum of 80,000 rupees, an equivalent of approximately $1,600. According to En-
Kay, this amount was inclusive of all benefits to which the contract staff was
entitled. Significantly, there is no provision in this contract for the payment of
subsistence allowance to the staff, and no representation that the contract staff
would be paid the equivalent sum as UN international staff was receiving.
Figure 21
103. Importantly, when the contract was administered by GTI in late 2001, there
were further reductions in the amounts paid to the contract staff, well below the
amounts paid by the Organisation to the Subject Company. The employees
received a base salary of 10,000 rupees per month (equivalent to $200), and an
additional 20,000 rupees for boarding (equivalent to $400). The Organisation
continued to pay the Subject Company approximately $8,000 per worker per
month.
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Figure 22
104. Further, the agreement required the contract staff to certify to the contractor
each month that "Living Expenses (lodging/boarding conveyance) or equivalent
benefits have been provided by the contractor." The PTF investigation has
confirmed that the amounts have not been paid to the staff. (See Paragraphs 2(b)
and (e) in figure 22). Further, the contract provided that staff have "NO contact
with the staff member of UN on any matter except for technical parameters
pertaining to his job performance," (emphasis in original) (paragraph 17), and
that contract staff was forbidden from divulging the "contents of the agreement
without the written authority of the Contractor. (Paragraph 19). (See
Appendix.)
105. Even more troubling contract staff was required to provide a "Bank Guarantee"
and post $2,100 dollars prior to the commencement of work, and the contract
makes clear that any breach of the contract would result of a forfeiture of
guarantee. Under this provision in the contract, the bases for a forfeiture
included "adverse performance" or "untimely termination" of employment.
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Figure 23
106. Further, the agreement provides in paragraph 21(ii) that "any representation and
or complaint to the U.N. or any other Organisation will be a breach of this
Agreement." A copy of the agreement and the performance bond is contained
in the appendix.
THE KOHLI COMPANIES
107. The murky relationship between En-Kay, GTI and Thunderbird is borne out by
other documents obtained by the PTF. On or about 28 August 2001 Mr. Ranjit
Kohli authorized a wire transfer payment to contract staff employees in Sierra
Leone from the Thunderbird's account in First Union Bank, McLean, Virginia.
The payment to the Subject Company contracted staff was made by
Thunderbird, and not by the Subject Company itself. It should be noted that
Thunderbird was not a party to the IT staffing contract and its existence was
unknown to the UN. The UN was never notified what involvement Thunderbird
had in the execution of the contract. Significantly, the document reflects that
US$11,000 payment represented the monthly salary for all seven staff
combined.
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Figure 24
Figure 25
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108. In October 2002 Mr. Saunders, then Chief of Procurement, sought clarification
from the Subject Company of the nature of their relationship with Thunderbird
and Nanak and Nishan Kohli. The inquiry was the result of the inconsistent and
conflicting information provided by Thunderbird and Nishan Kohli in another
UNPD Manpower Staff Support bidding contract.
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Figure 26
The Effort to Re-Bid the Contract
109. In 2001, after complaints of a failure to pay MSA reached officials of FALD,
there was an effort to seek a rebid of the contract. When Nishan Kohli learned
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there might be such an effort afoot, he attempted to halt the process and exerted
pressure on his contract staff to represent to the Organisation that they were
being fully paid and otherwise satisfied with their employment. From his
Thunderbird email address, Nishan Kohli sent an email directing the team
leaders to "condemn these misguided colleagues" and requiring that the contract
staff sign a petition to that effect.
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Figure 27
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Figure 28
110. The investigation has revealed evidence that the contract staff were compelled
to sign the document under the threat of termination. These signed
representations followed Mr. Sachdeva' requests to N.Singh to provide
confirmation of payments of "equivalent benefits."
Figure 29
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111. The correspondence reached numerous UN staff members, including Mr. Bahel
and Mr. Andrew Toh, Chief of Procurement at that time. In a note to Mr. Bahel
and Mr. Sachdeva later that same day, Mr. Toh forwarded the email from the
staff members and stated: "enough is enough." However, the investigation has
not revealed any evidence that any further action was taken.
The Subject Company's Current Cooperation with the PTF
112. The PTF has met with representatives of the Subject Company, both here in
New York and in their headquarters in New Dehli. There have been several
meetings between the PTF and the Subject Company representatives, and the
Subject Company has acknowledged some responsibility for the severe
problems in the IT staffing contract. The Subject Company lays principal blame
for the transgressions, however, upon Nanak Kohli and GTI. The Subject
Company officials have acknowledged that although Mr. Nanak Kohli and Mr.
Nishan Kohli were authorized representatives of the Subject Company at the
time, they nonetheless acted improperly in connection with their representation
of the firm with the UN, and exceeded their authority improperly utilizing the
Subject Company letterhead, and more seriously, failing to provide significant
benefits to the contract staff, including insurance. The Subject Company
presented the Task Force with written correspondence they claim they presented
to GTI in which these assertions are memorialized in writing in 2003.
113. The PTF presented the Subject Company's representative with written
correspondence authored by "N. Singh," on purported the Subject Company
stationary, and numerous emails from N. Singh to the UN. The Subject
Company representatives, with authority to speak on behalf of the company,
have represented to the PTF that N. Singh is in fact Nanak Kohli, and his use of
the Subject Company stationary was unauthorized. Mr. Bahel himself has
conceded that N. Singh is in fact Nanak Kohli.
114. The Subject Company representatives assert that while they were aware of, and
approved, the subcontract to GTI, they believed they had transferred all of the
obligations which flowed from the contract to GTI. The Subject Company has
presented documents to the PTF that reflects that between 80%-90% of the
funds paid by the Organisation to the Subject Company in consideration of their
performance (which includes salary and subsistence allowance) was passed on
to GTI. However, the agreement between the Organisation and the Subject
Company makes clear that the Subject Company could not assign those
obligations.
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115. The Subject Company asserts that in 2003 they severed their ties with GTI as a
result of the failure of GTI to comply with the obligations under the contract,
including the failure of GTI to pay the contract staff's insurance as required.
116. It is evident that such a failure to pay the amounts due and owing under the
contract constitutes a material breach of the contract. While the Subject
Company reports that they were unaware of GTI's failure to pay full MSA to
the contract staff, the company does not deny that such a failure occurred. The
Subject Company representatives were alerted to the fact that that there was
official correspondence from senior the Subject Company officials to the
Organisation representing that in fact MSA was being paid to the contract staff.
The Subject Company asserts that it underwent a significant management
change in 2003 and many of the senior officers were replaced. The Subject
Company argues that they are now a different, much improved company, which
has fully disassociated itself from Mr. Nanak Kohli and Mr. Nishan Kohli,
whom they term as "unethical." The Subject Company also asserts that the
company had a few employees who acted improperly, but that the company as a
whole is sound.
STAFF MEMBER 2'S RESPONSE
117. The PTF contacted Staff Member 2 about these matters and his interaction with
these companies and the events described above. Staff Member 2 informed the
PTF that essentially he could not remember anything about these issues. The
PTF views this statement as highly suspicious based upon Staff Member 2's
deep involvement in this case over at least a 2 month period between October
and November 2000, and that 76 calls were placed by Staff Member 2 to Mr.
Kohli's residence in Virginia.
MR. BAHEL'S RESPONSE
118. Mr. Bahel claims essentially that his actions were vetted through OLA and that
he alone was not in a position to influence the process. Further, he asserts that
the selection of the Subject Company saved the Organisation money.5
5
Mr. Bahel told PTF investigators that, agreeing to the changes to the contract which compelled payments
to the Subject Company directly, procurement division acted in the best interests of the Organisation,
averting a possible law suit from the Vendor over the recall of staff who failed the UN driver's test. The
text of the RFP did not specify the need to pass a UN driver's test. The adopted amendment required the
Vendor to "undertake all reasonable measures to ensure that the Personnel conform and abide by all written
and oral UN rules and regulations,... to pass the UN Driver's test and obtain UN driver's permit." Other
changes included the increase of the deployment period for the Subject Company personnel to 30 days and
UN's agreement not to offer employment to staff performing work on the contract until after six months
from the demobilization date from the mission. The PTF finds it difficult to understand how these
concessions, opposed by FALD, were in the best interests of the Organisation. Further, as set forth at
above, the prior experience with the IRCON contract should have resulted in the avoidance of the issues of
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119. Mr. Bahel's assertions that he vetted issues with OLA, and his actions were in
the best interests of the Organisation do not survive close scrutiny. As discussed
above, on a number of occasions Mr. Bahel framed the issues with OLA, and
was responsible for presenting the facts. At times, Mr. Bahel either omitted
material information, misrepresented information, or failed to provide the
requisitioner's position on important issues. Further, OLA had no role in many
of the significant issues.
120. Equally meritless is Mr. Bahel's reliance upon the position of OLA that the
dispute over the allegations that the contractor was failing to pay its contract
staff was a matter between the contractor and its employees. While OLA did
express this view, the opinion is premised upon, in part, the failure of proof that
MSA was not being paid. OLA, based on representations by Mr. Bahel and PD
that the Subject Company had denied the failure to pay MSA, concluded that
the allegations were unproven. This fact affected OLA's analysis.
121. It should be noted, however, that OLA's view that any dispute was purely a
contractual matter between the Contractor and its staff is difficult to understand
in light of the well established principles of contract law that fraud in the
inducement or execution of a contract vitiates the contract in the first instance.
Further, the Organisation should have been concerned about the conditions of
employment of the contract staff, its reputation, as well as the loss of funds.
PTF'S EVALUATION
122. Throughout the execution of the contract with the Subject Company a scheme
existed to deprive the contract staff of sums of money due and owing to them.
This scheme enriched Nanak Kohli and Nishan Kohli, GTI and En-Kay
Associates, to the detriment not only of the contract staff, but of the
Organisation as well. Mr. Bahel assisted Nanak and Nishan Kohli in acting in
their interests when issues arose and challenges were made by FALD and
contract staff, and suppressing the concerns of the requisitioner, FALD.
123. The Subject Company, Nanak Kohli and Nishan Kohli violated the terms of the
contract with the Organisation by failing to advise the Organisation of the
utilization of other subcontractors, explaining the nature of the use of these
other entities, and failing to seek approval from the Organisation for the
assignments. The use of these entities facilitated the scheme.
MSA payments with the Subject Company. The IRCON contract provided for identical terms, and similar
problems arose in the performance under the contract. Mr. Bahel was perhaps the only individual who was
present for both processes, including the negotiation and execution of both contracts.
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124. The Organisation significantly overpaid the Subject Company, a circumstance
which could have been avoided. Paragraph 5.4 of the contract provided that
"[t]he Contractor shall take all reasonable steps to keep all costs and expenses
for which the UN is responsible for reimbursing the Contractor at the lowest
possible level." The actual cost to the Subject Company for food and lodging
for the contract staff was far less than amounts they were paid by the
Organisation.
125. A thorough investigation of the issues should have been allowed to proceed at
that time. The Organisation had audit rights and access to the books and records
of the contractor. The PD bears some responsibility for taking the Subject
Company's representations at face value, and Mr. Toh and Mr. Bahel's
challenges to the auditors and acceptance of the Subject Company's
representations further resulted in the failure of the Organisation to intercept the
scheme. (Under paragraph 16.1 and 16.2, the books and records of the Vendor
were to be sent to the offices of the PD.)
Trigyn Technologies Inc
126. On 3 March 2005 a communication and information staffing support contract,
PD/C0028/05 was awarded to Trigyn Technologies Inc. USA, a subsidiary of
Trigyn Technologies Limited India (Trigyn). The contract is in place today, and
the vendor is currently providing manpower services to Missions in the
Organisation. The PTF investigation reveals, and Trigyn has conceded, that
Thunderbird is a subcontractor on this project. The PTF is currently
investigating claims that GTI is also involved, and that false financial
information was submitted to the Organisation to achieve the contract. Further,
there are allegations that once again not all of the salary and MSA payments are
being passed on to the contract staff.
Thunderbird Industries LLC Engineering Manpower Contract
127. As set forth above, in 1995 the Organisation entered into a contract with
IRCON India for the provision of engineers and other technicians to DPKO
missions (engineering manpower contract). As in the case of the IT Staffing
Contract, the engineering manpower contract was critical to the operation of the
peacekeeping mission's engineering sections. Under the contract, IRCON
employees received a subsistence allowance to pay for lodging and food while
in the mission. The MSA was payable to the company, and the company was
then responsible for passing the funds on to the workers.
128. In 2002 the IRCON contract was due to expire. The Organisation determined to
re-bid the contract. PD issued an RFP and several vendors submitted proposals.
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On 8 April 2002, Mr. Etsell, officer in charge of DPKO's Engineering Section
(LCS/FALD/DPKO) informed the PD of DPKO's need for manpower
engineering support in various UN peacekeeping missions throughout the
world. Mr. Etsell provided the PD with a Statement of Work. The SOW was
received by Mr. Bahel, the then acting Chief of PD.
129. Weeks later, and shortly before the Procurement Department issued an
Expression of Interest (EOI) notice on its website to inform prospective vendors
of the needs of the Organisation for manpower services, Thunderbird submitted
a vendor registration application seeking to register to do business with the
Organisation for telecommunications and related services. The application was
submitted by Mr. Nishan Kohli. In connection with its application, Nishan
Kohli offered a completed registration form; a copy of a purported certificate of
incorporation; balance sheets which were not audited or certified by an
independent Certified Public Accountant; correspondence from the firm's
accountant with the disclaimer that GAAP principles were not used in the
compilation of the documents; and letters from companies purporting to be
references for Thunderbird, specifically Decotec Inc. of Fairfax Virginia;
Compaq Computers of India; Barrett Europe Limited of Hampshire, England.
130. The procurement rules and accepted practices require that in order to properly
be registered with the Organisation , the company must provide the following:
a) a valid copy of the certificate of incorporation
b) the latest certified or audited financial statement (balance sheet,
income statement or signed copy of income tax return)
c) a minimum of three recommending reference sources by services
rendered within the last 12 months.
131. On 3 June 2002, however, without questioning the lack of certified financials or
carefully examining the offered references, PD officer Diana Mills-Ayree
approved Thunderbird's vendor registration application based on the
information the company had provided to date. (It should be noted that
repeated efforts by the PTF to obtain the Thunderbird registration file as well as
the procurement file, met with negative results. These files are currently
considered missing.)
132. Mr. Bahel assigned the engineering manpower solicitation to Procurement
Officer Ms. Babynina with the assistance of a procurement officer/trainee Ms.
Redfern. On 23 May 2002 the procurement department posted on its website an
Expression of Interest ("EOI") which ran for a total of 25 days. The intended
purpose of the EOI was to advise both registered, as well as non-registered,
vendors of the Organisation's need for contract services for manpower. Internet
research was conducted in order to identify and supplement qualified vendors
who could provide these services.
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133. PD officers Ms. Babynina and Ms. Redfern prepared a list of service providers
together with a draft of the Request For Proposal ("RFP"), and provided it to
Mr. Bahel for his approval and signature. A witness has informed the PTF that
after reviewing the RFP, Mr Bahel insisted that the publicly posted EOI include
a requirement calling for interested vendors to have been fully registered prior
to the bid opening. However, procurement rules Section 7.9(1), as well as
common practice in the department, allowed for provisionally registered
vendors to participate in the process, so long as they are fully registered prior to
contract selection. The effect of requiring full registration at this stage of the
process was the improper elimination of a number of competing vendors.
134. The investigation has revealed that Ms. Babynina prepared the Statement of
Work ("SOW"), which was ultimately provided to Mr. Bahel for his approval
and signature. Two witnesses have claimed that Mr. Bahel "re-worked" the
SOW to include another stipulation requiring interested vendors to have $15
million in annual turnover. The result of this requirement was the further
elimination of a number of vendors.
135. On 5 July 2002 the RFP was sent to 24 companies, representing 15 countries.
The bid opening date was 30 July 2002 with only 5 vendors responding. On 6
August 2002 the technical evaluation was conducted by Mr. Stephen Etsell,
Officer in Charge, Engineering Section LSD/DPKO who determined that all
vendors were technically qualified. However, Etsell maintained concerns about
Thunderbird and found their proposal to be "marginally compliant," based upon
the lack of information concerning experience in managing engineering support
services. Etsell stated "[w]e have reservations that this company can support our
requirements as a result of the lack of information in the RFP." Mr. Etsell also
requested that a Dun & Bradstreet (D&B) report on the company be obtained by
PD. Mr. Etsell communicated this request to Mr. Bahel in his technical
evaluation. On the very same day as Mr. Etsell communicated this request to
PD, Nishan Kohli contacted D&B in order to self-create a record for
Thunderbird LLC. The PTF does not believe this is a mere coincidence.
136. That evening, following receipt of the technical evaluation report, Mr. Bahel
unsealed the envelopes containing each of the five financial proposals.
Thereafter, procurement officers assigned to the matter examined the financial
proposals submitted by each of the vendors. According to one of these officers,
Mr. Bahel told them the financial evaluation of the firms was not required in as
much as Thunderbird was the lowest bidder. According to the witness, Mr.
Bahel became very upset when the officer tried to examine the other proposals
comparing them against the proposal submitted by Thunderbird. According to
the officer, Mr. Bahel began shouting that this was unnecessary.
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137. On 13 August 2002 Staff Member 3 sent an email to Mr. Bahel again explaining
concerns that Thunderbird was a very small company with a history of merely
four contracts, none of which were particularly relevant to the instant
solicitation. Staff Member 3 requested that Mr. Bahel arrange an in person
meeting with the vendor to discuss a number of "troubling issues." According
to Staff Member 3, Mr. Bahel never arranged the meeting; instead, Mr. Bahel
furnished Staff Member 3 with additional letters of reference in support of
Thunderbird's proposal. Table 1 reflects Thunderbird's relevant references as
described in its technical proposal for RFPS
Value of Synonymy to
Client Name Country Date Contract RFPS 374
Indo-Kuwait General Kuwait July-02 $1,000,000 Flexible deployment of
Trading and Contracting personnel as per
customer's requirement
VeriSign Worldwide Jun-01 $10,000,000 Hardship areas - short
and long term
deployments
Multi-Links Nigeria Ltd Nigeria Jul-02 $5,000,000 Deployment of all
levels of personnel
Marshal's Power and India & Jul-02 $1,000,000 Supply of short term
Telecom India, Ltd. Worldwide and long term
engineering staff
Table 1
138. After a review of the documentation provided, Staff Member 4 maintained
concerns about Thunderbird, which caused her to question the bona fides of the
company. According to Staff Member 4, she was prevented from closely
examining the company by Mr. Bahel who told her she "was not an
investigator" and would not allow her access to the vendor registration file.
139. The PTF investigation has revealed that further scrutiny was clearly warranted.
The accounting information provided in Thunderbird's financial statements $0.1
million, $2.5 million and $38 million revenue for fiscal year 1999, 2000 and
2001, respectively, claimed by Thunderbird LLC were not reasonably
substantiated considering income tax returns could not be produced.
1999 2000 2001
Revenue $ 100,000.00 $ 2,500,000.00 $ 38,000,000.00
Table 2
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When asked to provide tax returns, Nishan Kohli first stated that it had
insufficient income to require such a filing. However, Nishan Kohli later
submitted inconsistent figures about Thunderbird's revenue and income. As
table 2 reflects, Thunderbird reported different amounts of income on the three
separate occasions it submitted financials in response to PD's requests.
Comparative Analysis of three sets of P/L statements for year ending 2001 submitted by
Thunderbird Industries LLC, re: RFPS-374
Submission Date 4 Submission Date 30 Submission Date
June 2002 July 2002 31 October 2002*
Income
Total net Sales $38,417,720.00 $38,417,720.00 $33,639,297.00
Costs of Sales 37,389,437.00 $36,789,437.00 32,889,471
Gross Profit $1,028,283.00 $1,628,283.00 $749,826.00
Total Fixed Expenses $285,602.00 $285,602.00 $335,461.00
Total Controllable 288,050.00 $288,050.00 97,410.00
Expenses
Total Expenses $573,652.00 $573,652.00 $432,871.00
Net Profit (Loss) $454,631.00 $1,054,631.00 $316,955.00
Taxes ($307,635.86) 5,916.00
Net Profit (Loss) After $454,631.00 $746,995.14 $322,871.00
Taxes
* Financial statements prepared by Roth & Company, CPA
Other financial statements prepared by TBI, LLC
Table 3
140. A procurement officer ran a Dunn & Bradstreet report on Thunderbird LLC,
which failed to reflect any information. However, the officer learned of the
existence of a company named Thunderbird Industries Inc. (Thunderbird Inc.)
which was located at the same Virginia address as Thunderbird LLC and which
also listed Nishan Kohli as its Chief Executive Officer. An examination of
Thunderbird Inc. at the time reflected that the company's operations ceased in
1999 and that its charter was also revoked that year. However, the procurement
officer identified a news article which related to Thunderbird Inc.'s effort in
2000 to supply the Government of India with portable frequency jammers which
were ultimately found to be defective. Included in Thunderbird LLC's
application with the United Nations, is a note claiming credit for the provision
of Portable Frequency Jammers to the Government of India in 1999 (US
$85,000) and 2000 (US $165,000).
141. The inclusion of these transactions which had apparently been accomplished by
Thunderbird Inc., as opposed to Thunderbird LLC, improperly boosted
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Thunderbird LLC's financial image which was premised upon inaccurate
information. On the one hand Mr. Kohli sought to enjoy the benefit of relaxed
financial reporting requirements afforded to privately held limited liability
companies ("LLC"), and at the same time claimed benefits of the financial
transactions of Thunderbird Inc. to fictitiously demonstrate greater revenue for
the company.
142. In the interview with the PTF investigators, Staff Member 3, Officer in Charge
of the Engineering Section, DPKO, stated that dissatisfaction with the Subject
Company's performance was widely known, and frequently discussed amongst
DPKO staff. According to Staff Member 3, he was aware at the time the Subject
Company contract had "problems" and wanted to avoid similar issues with the
engineering manpower contract. Particularly troubling to him was the fact that
the UN had been paying living expense subsistence monies to the Subject
Company, which the Subject Company had apparently failed to pass on to their
workers. Further, according to Staff Member 3, Mr. Bahel never informed him
that Nishan Kohli represented both the Subject Company and Thunderbird.
According to Staff Member 3 this would have been an important fact given
what he had heard about the performance of the Subject Company.
143. Staff Member 3 has informed PTF that he had growing concerns that
Thunderbird was incapable of performing satisfactorily, and that he had learned
that Thunderbird had not submitted the financial statements as required by the
RFP. Staff Member 3 stated that if these facts were true, Thunderbird should
have been disqualified from the process. Staff Member 3 further stated that Mr.
Bahel assured him that the PD could approach this vendor (Thunderbird) and
obtain all the necessary information. Staff Member 3 stated that it appeared to
him that Mr. Bahel "was trying to keep Thunderbird in the running," while at
the same time waiting for their financial statements and other information to be
submitted.
144. On 27 August 2002 Mr. Bahel held a meeting in his office with Staff Member 4
and Staff Member 3 to inform them the PD would be recommending the award
of this contract to Thunderbird. According to these witnesses, Mr. Bahel also
explained that Thunderbird was considered a Limited Liability Company
("LLC") and as such they were not required to provide audited financial
statements. However, according to these witnesses, Mr. Bahel stated that
notwithstanding this fact, the company represented a US $15 million turnover in
2001. Mr. Bahel requested that Staff Member 3 send him an email stating that
the references provided by Thunderbird seemed to satisfy their concerns about
the ability of Thunderbird to perform. On the following day, Mr. Bahel
telephoned Staff Member 3 to remind him to send the requested email, which he
did. Staff Member 3 stated that he recalled one of the letter of references to be
from VeriSign, a well-known company, which he considered an important
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element in giving his support to Thunderbird. Staff Member 3 stated that in his
view, without this reference, this award would not have gone to the HCC.
145. A number of witnesses have informed the PTF that Thunderbird and the Subject
Company's representatives, Nanak Kohli and Nishan Kohli, frequently visited
the PD and were often in Mr. Bahel's office. According to Staff Member 5, a
former assistant to Mr. Bahel, she was introduced at one point in 2002 to an
older Indian gentleman whom she understood was from the Subject Company,
sometimes accompanied by a younger Indian male, but could not remember
their names. Staff Member 5 said it seemed to her to be improper for a
procurement official to be meeting with a vendor as often as they did, especially
without other vendors, or their representatives, being present.
146. On 4 September 2002 Mr. Bahel, the Section Chief, rather than the procurement
officer who was absent, presented the case before the HCC and recommended
the award of the contract to Thunderbird. Although present for the HCC
presentation, Staff Member 4 stated that she never spoke, but took
contemporaneous notes. The official HCC minutes reflect Staff Member 3 as
saying on behalf of DPKO that he found, "unequivocally," that Thunderbird
was capable of meeting the UN's requirements. However, Staff Member 3 has
informed PTF investigators that notwithstanding his general support for
Thunderbird at the time, he never used the term "unequivocally" in the HCC
presentation, nor held such a strong view. It is also clear that Staff Member 3
left midway through the presentation as he had another pressing appointment.
147. The HCC minutes did reflect concerns on the part of some of the HCC members
with Thunderbird's financial soundness and capability to perform. The
Committee stated that "[a]s Thunderbird was a newly registered entity with the
Organisation, PD, as a matter of due diligence, conducted a detailed review of
Thunderbird's proposal...." It is evident that the HCC relied upon
representations that due diligence of the company was conducted. Based upon
the facts learned thereafter and during the course of this investigation, PTF
considers insufficient inquiry was made into the bona fides of the company.
148. It is also clear that expedited approval for the award was sought. The PTF has
interviewed numerous witnesses involved in the process, and no one has
accepted responsibility for seeking the expedited approval, including either the
case officer, or Mr. Bahel. However, it is clear that either the procurement
officer, or a supervisor, must make the request of the HCC in the first instance.
PTF investigators have identified an email, dated 28 April 2003, from Joao
Marcedo, the Secretary of HCC, which confirms this fact. Mr. Marcedo stated:
As a matter of policy, we only provide expedited approvals with a
written or verbal request from PD. It is not uncommon that after
the deliberation of a particular item, the Procurement Officer/s
might make a verbal request for an expedited approval that we
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have accommodated without insisting for a written request. Our
records indicate that the Procurement Officers present for that item
at the meeting were Mr. Bahel and Staff Member 4."
149. Staff Member 4 has denied requesting expedited approval, a position which
seems credible in light of her repeated concerns about the company at the time.
Staff Member 4 also said that she never spoke to the HCC meeting, and that Mr.
Bahel spoke on behalf of the PD throughout the entire presentation. Both Staff
Member 6, and Procurement Officer Staff Member 7, who had become involved
in this matter peripherally after the HCC meeting, denied making the request.
The file also reflects an email from Christian Saunders, the then Chief of the
Procurement Department, to Ms. Redfern, dated 28 April 2003 stating that: "I
also spoke with both Sanjay and Walter who inform me that they did not request
a rubber stamp approval."
150. Mr. Bahel told PTF investigators that he first learned of the expedited approval
from Ms. Redfern on or about 10 September 2002 prior to his departure on
extended leave. Mr. Bahel said he never questioned Ms. Redfern regarding the
need or justification for expedited approval in this case even though he was her
supervisor and was well-acquainted with the facts of the case as he personally
presented the matter before the HCC. Mr. Bahel's response lacks credibility.
The PTF has interviewed various witnesses, examined numerous emails and
documents which contradict Mr. Bahel's statement that he learned of the
expedited approval from Ms. Redfern. Further, to the extent that Mr. Bahel's
Bahel assertion that Ms. Redfern asked for the expedited approval and learned
of it from her is not credible in light of the facts and reasonable inferences to be
drawn therefrom. Mr. Bahel was the individual who pressed on behalf of
Thunderbird for the contract.
151. In the first instance, the need for expedited approval is questionable in light of
the fact that an extension of the contract in place at the time was also sought,
and granted. In addition, Thunderbird had yet to provide audited financial
statements, and the HCC had directed that Thunderbird produce these
documents in four weeks. In fact, it took Nishan Kohli more than eight weeks to
ultimately provide the documents. Further, the current contractor was being
extended for an additional eight weeks.
152. The HCC minutes reflect other troubling facts. Originally, Mr. Etsell in his
submission of the Statement of Work (SOW) of 8 April 2002, had requested a
contract to be established for an initial period of one year with the option to
extend the same for two additional periods of one year each. However, a review
of the HCC minutes and the HCC Award Recommendation cover page reflect a
handwritten change in the award from one year to three years with the option of
extending up to two additional years. Staff Member 4 confirms the handwriting
is Mr. Bahel's. She also contends that Mr. Bahel was responsible for replacing
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the concept of "Mission Subsistence Allowance" with "Living Expense
Amount" in the contract, a contention Mr. Bahel denies and attributes to the
Office of Legal Affairs.
153. The procurement rules provide that an award is not final until the Assistant
Secretary-General for Department of Management (ASG/DM) reviews the HCC
minutes and expresses his concurrence through signing the HCC cover page.
While the minutes of the HCC meeting were pending and not yet finalized, a
one page form had been issued by the HCC granting expedited approval for
both the continuation of the current contract, and for its replacement by
Thunderbird.
154. After the HCC presentation, on 10 September 2002 Mr. Bahel, who was
scheduled to leave New York on annual leave, convened a meeting with Staff
Member 4 and Staff Member 7 prior to his departure. In this meeting, Mr.
Bahel instructed them to notify Thunderbird of the recommendation to award
the contract to them. According to Staff Member 7, he understood that he was
not able to provide a Letter of Intent (LOI) to Thunderbird, but was able to give
verbal notification of the HCC's action based upon the document issued by the
HCC. Staff Member 7's understanding that this action was permissible was
based upon the fact that his supervisor, Mr. Bahel, directed him to do it, as well
as his own understanding of the rules at the time. According to Staff Member 4,
Mr. Bahel further instructed them upon receipt of the HCC minutes confirming
that no additional requirements had been imposed by the Committee they should
begin to prepare an award letter to Thunderbird.
155. At the direction of Mr. Bahel, Staff Member 7 did in fact notify Mr. Nishan
Kohli that the HCC had recommended that the contract be awarded to
Thunderbird and that Thunderbird would likely receive the contract. Staff
Member 7 asserts that he further notified Mr. Kohli that PD could not issue an
LOI prior to receiving the approved HCC minutes and formal award of the
contract.
156. Staff Member 7 concedes that he provided notice to Nishan Kohli at the express
direction of Mr. Bahel after the HCC had issued a notice of expedited approval.
According to Staff Member 7, Mr. Bahel left instructions to await a copy of the
approval in his inbox in the procurement office. Further, according to Staff
Member 7, Mr. Bahel told Staff Member 7 that he would be out of the office
and requested that Staff Member 7 should retrieve the document and notify the
vendor of the likely award. Staff Member 7 acknowledges that he followed the
direction, and in the course of contact with Mr. Kohli, he provided the
notification.
157. In preparing the ultimate contract for the award, according to Staff Member 4,
Mr. Bahel further instructed Staff Member 7 to obtain the latest electronic
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version of the the Subject Company IT staffing contract, including Amendments
1 and 3, together with its terms and conditions, as a model for use in the
preparation of the Thunderbird contract. Staff Member 7 indicated that this
request came from Staff Member 6 or Staff Member 4. All concede that the the
Subject Company contract was to be used as a model in preparation for the
Thunderbird contract.
158. However, as set forth above, the the Subject Company contract was found to be
deficient and ambiguous in material respects. The effect of this provision
resulted in the ability of the contractor to receive payments intended for the
contract staff directly, without providing proof that the amounts had been paid.
159. Staff Member 3 told investigators he did not want to have a "morale problem"
with the contract employees and therefore sought Mr. Bahel's assurance that the
workers would receive the full subsistence payment. According to Staff
Member 3, Mr. Bahel told him that if Thunderbird failed to pay the subsistence
to its workers, he would "call in" the performance bond and pay the employees
directly.
160. In early September 2002 Staff Member 3 says he met with Nishan Kohli,
Thunderbird's representative, at the request of Mr. Bahel. Staff Member 3 was
suspicious and concerned about meeting with a vendor prior to any official
announcement of the contract award. As a result of this concern, Staff Member
3 urged his assistant, Gaynor Cote, to attend the meeting with him, and take
notes. At the meeting, according to Staff Member 3, Mr. Kohli stated that he
was the lowest bidder, and understood he would be receiving the contract. Staff
Member 3 expressed to PTF investigators that he was surprised by this
statement because he did not realize this information was publicly known.
According to Staff Member 3, Nishan Kohli further gave notice of his plans to
travel to the Congo to meet with some of the current IRCON employees.
According to Staff Member 3, he told Mr. Kohli in no uncertain terms that Mr.
Kohli was absolutely forbidden to do this because it would be very disruptive to
the current operations of the UN Mission. Nevertheless, and despite the
admonition from Staff Member 3 and Mr. Cabrera as well to the same effect, on
or about 21 September 2002 Mr. Kohli travelled to the Mission and met a
number of IRCON employees, offering them employment opportunities with
Thunderbird. According to IRCON employees senior managers with whom the
PTF spoke, this act caused major disruption amongst IRCON's contract staff.
161. On 21 September 2002 IRCON representatives delivered a letter to Christian
Saunders, then the Chief of the Procurement Division, complaining of Nishan
Kohli and the Subject Company's attempt to "raid their staff." A Note to the
File, dated 26 September 2002 from Ms. Cote further disclosed that the Subject
Company was offering IRCON personnel lower wages, and that there was no
mention of living expense subsistence pay.
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References
162. The PTF has investigated the bona fides of Thunderbird's representations to the
Organisation in connection with its submissions of references in support of the
contract award.
163. In connection with their effort to register with the Organisation, Thunderbird
LLC, through Mr. Kohli, offered the following companies as references: 1)
Decotec Inc; 2) Compaq Computers India; and 3) Barrett Europe Limited.
164. PTF investigators contacted Decotec Inc on 12 May 2006 and spoke with Dr.
William Weisenberger Jr. Mr. Weisenberger confirmed he wrote the letter for
"Thunderbird." Mr. Weisenberger could not recall if he wrote the letter for
Thunderbird Inc. or Thunderbird LLC. Rather, Mr. Weisenberger stated that the
letter was for the elder Kohli, the father, with whom his father had done
business for more than 20 years. Dr. Weisenberger confirmed that his father
had done business with Nanak Kohli, and he was currently "doing business"
with Nishan Kohli. Dr. Weisenberger added that the letter was written on
behalf of the Kohlis, and not Thunderbird as a company.
165. Efforts to contact Compaq Computers India have met with resistance. The
company has referred the PTF to corporate counsel, and PTF investigators were
not allowed to speak with employees associated with the reference letter. The
PTF has concerns about the authenticity of correspondence provided by the
company.
166. PTF investigators contacted Mr. David Peaty of Barrett Europe Limited
(Barrett). Mr. Peaty informed the investigators that the letter in question was in
fact written by him, but it was not intended as a "recommendation" letter. The
letter memorialized an agreement between Barrett and Thunderbird allowing
Thunderbird to bid on Barrett's behalf for UN projects. Mr. Barrett confirmed
that he has not engaged in business with either Thunderbird LLC or
Thunderbird Inc.
References in support of the RFP
167. Thunderbird supplied four letters in support of their proposal for the engineering
manpower contract, to include 1) Indo-Kuwait General Trading & Contracting
Company; 2) Marshals Power and Telecom India Ltd; 3) Multi-Links, Nigeria;
and 4) VeriSign.
Multi-Links
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168. H.R. Singh was the author of the letter submitted to the Organisation on behalf
of Multi-Links Nigeria (Multi-Links). Mr. Singh was contacted, and could not
locate a copy of the letter he wrote. Mr. Singh could not, and did not, verify
that Thunderbird LLC had indeed performed the services stated in the
correspondence, nor could he determine whether Thunderbird had conducted
any business with the company. A further investigation of Multi-Links reveals
an association with the Subject Company. PTF investigators went to the Multi-
Links website which at the time of the search listed the Subject Company under
the "Group Associates" icon, and provided a link to the Subject Company's
website. Following the PTF's contact of Multi-Links, the reference and link to
the Subject Company are no longer there.
Figure 30
Indo-Kuwait General Trading & Contracting Company
169. The PTF investigation has revealed that Indo-Kuwait General Trading &
Contracting Company (Indo-Kuwait) is part of Ahmed Yousef Behbehani &
Partner W.L.L. group in Kuwait. Mr. Behbehani is the Subject Company's local
agent in Kuwait as verified by several tenders offered by the Subject Company.
The letter on behalf of Thunderbird, purportedly authored by R.
Krishnamoorthy, has not been verified. Mr. Krishnamoorthy has been contacted
and he has informed PTF investigators that he could not locate a copy of the
letter, or identify any records relating to Thunderbird Industries LLC in the
company's files. Mr. Krishnamoorthy has further informed investigators that
"Thunderbird Industries was keen to associate with our company, but the
situation did not arise."
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Figure 31
VeriSign
170. Despite repeated requests, VeriSign has not provided documents or allowed
investigators to fully interview relevant witnesses. Their corporate counsel has
referred investigators to prosecutors from the Southern District of New York
who have apparently contacted the company. Prior to being referred to
corporate counsel, a PTF investigator spoke with Leonard Johnson, the author
of the letter to the Organisation on behalf of Thunderbird. Mr. Johnson
confirmed he wrote the letter but could not verify that Thunderbird had
performed any work for VeriSign. Mr. Johnson referred the investigator to the
Federal Bureau of Investigation and provided the investigator with the name of
VeriSign's in house counsel, for further information.
171. The investigation has also revealed that Ranjit Kohli, Nishan Kohli's brother,
was a Practice Manager for VeriSign during the relevant time period, and is
now the Managing Director of Acusign, a company which holds a close
relationship with VeriSign in India. The fact that Ranjit Kohli was a Manager
with VeriSign at the time of the reference was not revealed to the PD.
Marshals Power and Telecom India
172. The PTF made efforts to contact the management. No response has been
received to date.
Laptop Computer Contract Awarded to the Subject Company
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173. In February 2002 DPKO Communications and Information Technology
Services (CITS) sought to obtain a new systems contract for laptop computers.
Mr. Cabrera was the procurement officer in the procurement department (PD)
assigned to this matter, and reported to Mr. Bahel who participated in this
contract award as well. On 25 February 2002 an expression of interest was
issued by PD. An invitation to bid followed on 15 April 2002 which was
transmitted to 36 vendors from nine countries.
� CITS advised PD that they desired only "IBM, Dell and Compaq"
computers on the basis of ITSD standards for computers. On the other
hand, through the Chief of the Information Technology Services Division
(ITSD), Mr. Eduardo Blinder, who became involved in the process by the
request of Mr. Bahel, recommended adding Toshiba, Sony, Fujitsu and
NEC to the list. In a subsequent exchange of emails between PD and the
requisitioner (CITS and ITSD), CITS continued to assert that they sought
only the three major brands of computers to avoid "inferior products,"
laptops from "questionable manufacturers," "clones" and "home built
computers." Ultimately, however, CITS agreed that they were amenable
to expanding the field to include other major brands of computer
manufacturers who were recognized industry leaders. As a result, on 24
April 2002, the case officer, Mr. Cabrera, issued a bid amendment
notification to the vendors correcting the anticipated quantity of the
computers sought, and clarifying that only "Compaq, Dell, IBM, Toshiba,
Sony, Fujitsu and NEC" brands would be considered for solicitation.
174. On 15 May 2002 the bids were read publicly. La Cresta Communications of
California submitted the lowest priced bid based upon a Pentium III Toshiba
model. The Subject Company was the next lowest bidder offering a Compaq
model, followed by Dell, and then SSDI with an IBM, and finally Manchester
Technologies offering a Fujitsu model. On 30 May 2002 Mr. Cabrera notified
La Cresta that the company needed to resubmit the specifications for the
Toshiba model they were offering as the table of compliance with the bid
technical terms was absent, and specification pages from La Cresta's
submission were contrary to the proper format. Nevertheless, Mr. Cabrera
allowed La Cresta to resubmit the pages.
175. In its response, La Cresta informed PD that Toshiba was discontinuing the
Pentium III model offered in its original submission, but that they would
upgrade the model proposed to a Pentium IV and provide the upgraded model to
the Organisation at no extra cost. La Cresta informed PD that because of the
discontinuation of the Pentium III model, they therefore could not provide the
anticipated quantity of Pentium III laptops called for in the RFP, but informed
PD of its ability to fill the order for the guaranteed quantity with the currently
proposed model, and of their readiness to fill the remainder with the upgraded
model.
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176. The investigation has revealed that Mr. Cabrera forwarded La Cresta's offer of
an upgraded model to CITS personnel, by email. Subsequent email
communication reflects that Mr. Cabrera's dialogue with DPKO about the
upgraded model continued. The PTF has expended considerable effort to
reconstruct the sequence of events that followed. A three week lapse existed
between the time of the finding that La Cresta was determined to be compliant,
and the initiation of the re-bidding exercise. In the interim period, email
correspondence confirms that DPKO found La Cresta to be technically
compliant even after the offer of an upgrade. Mr. Cabrera was further in the
midst of preparing the presentation to the HCC.
Figure 32
177. Procurement Department officials, including Staff Member 7 and Mr. Bahel,
concede that at this point there was no further issue, and no justification not to
award the contract to La Cresta. No correspondence exists in the case file from
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procurement to the vendor notifying them of the cancellation. Recently, PTF
investigators reached the officials in La Cresta responsible for the submission
and the representative who interacted with the Organisation in connection with
this contract. The official remembered the event well, and informed PTF
investigators that he was told by Mr. Cabrera that the bid was being cancelled,
and that "they" wanted to do it, as they didn't want to have another model
because of maintenance issues. He believed "they" was a reference to Mr.
Cabrera's supervisor since the official asserted that he spoke with the DPKO
official who indicated to him that DPKO was satisfied with La Cresta's renewed
offer.
178. Further, a DPKO official involved in the process has informed the PTF that in
conversations first with Mr. Cabrera and Mr. Streb, and then later with Mr.
Bahel in this interim period, it was represented to him that PD had expressed a
view that there was an "issue" with La Cresta's submission. According to the
official, both Mr. Cabrera and Mr. Bahel suggested a re-bid because of a
"technicality." While the official objected, he was told by both Mr. Cabrera and
Mr. Bahel that because the matter is a commercial one it is within the exclusive
prerogative of PD to cancel the bid on the basis of commercial non-compliance.
The PTF finds that, based on these circumstances, this act was improper.
179. The assertions by the DPKO official appear to be corroborated by statements
made by the vendor, La Cresta, that the motivating entity to cancel the bid was
officials in the Procurement Department. The explanation attributed to PD that
there were commercial issues with La Cresta's bid is not persuasive. DPKO
had found La Cresta to be compliant and the firm was the lowest bidder, a fact
confirmed by the DPKO official and an email uncovered by the PTF.
Furthermore, it was conveyed to the La Cresta official that the procurement
department was preparing a presentation to the HCC.
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Figure 33
180. It is further clear that the cancellation of a bid must be approved by a supervisor
in PD, a fact that Mr. Bahel concedes. Therefore, a reasonable and logical
inference to be drawn from the undisputed facts compels the conclusion that Mr.
Bahel was involved in the process to cancel the bid, and held responsibility for
the cancellation. There is no evidence brought to the attention of the PTF
justifying the cancellation. During his interview, Mr. Bahel could not provide
an explanation. Therefore, based upon the above, the PTF finds that Mr. Bahel
was remiss in his responsibilities and violated the procurement rules.
181. It is clear that a new invitation to bid (ITB) was issued in early July. The
supplemental ITB ultimately limited the solicitation to the three brands of
computers originally requested by CITS.
182. The ITB was based upon the upgraded specifications, the Pentium IV model.
Ten companies responded, and two companies, the Subject Company and
Danoffice, were the most competitive both offering the same Compaq model.
The Subject Company offered the lowest price, followed by Danoffice. Of the
initial bidders, the Subject Company was the only company to propose a lower
price for the computer model it offered. All other vendors raised their prices
from the initial bid. Although La Cresta offered a Compaq brand, and the
second lowest bid, the model it was offering was inferior to the models offered
by the Subject Company and Danoffice, and was in fact determined by CITS to
be non-compliant.
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Graph 2
183. On 18 July 2002 Mr. Bahel, the Officer in Charge of Procurement at the time,
recommended the award to the Subject Company for a systems contract in the
amount of US$5,340,000. In the presentation of the matter to the HCC, officials
questioned the basis for limiting the bidding exercise to the three specified
brands and intimated that the PD violated UN rules and regulations by the use
of brand names in its ITB. Email communication after the event describes a
circumstance in which DPKO officials are questioned about the limitation of the
re-solicitation to the three preferred brands. The HCC stated that "were it not
for the imminent loss of funds, the Committee would have recommended that a
re-bidding exercise be conducted inviting all brands of laptops that met the
UN's requirement." Nevertheless, the proposed contract award to the Subject
Company was ultimately approved, and signed. (It also should be noted that
Mr. Blinder chaired the HCC meeting. It appears Mr. Blinder suffered from a
conflict serving as the Chair as well as having involvement in the process on
behalf of the requisitioner).
184. The impropriety of the cancellation of the first bid, and the invitation for
vendors to re-submit further bids in light of the cancellation, allowed the other
vendors a second opportunity to bid on the laptop contract. As set forth above,
the re-bidding exercise is questionable in light of the fact that La Cresta was
held to be technically compliant by DPKO, and offered the lowest bid. On that
basis, it appears that they should have been awarded the contract in the absence
of objection by the requisitioner, a fact that both Staff Member 7 and Mr. Bahel
now concede. Nevertheless, the conclusion of the PTF is that Mr. Bahel
cancelled the bid. He was the PD official involved in the matter who had the
authority to do it, and past practice suggests that such a decision could only
come from a supervisor. Staff Member 7 did not have the seniority or position
to authorize that act.
185. Absent a clear explanation supporting the cancellation of the bid, the decision to
cancel the contract and ultimately award it to the Subject Company is not
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justified. The PTF finds that Mr. Bahel cancelled the bid without justification,
and violated procurement rules.
186. The failure to award the contract to La Cresta caused the Organisation to lose
8.9% of the executed contract value on a support-cost adjusted basis, based on
calculations by PTF investigators. This calculation is a conservative estimate.
OTHER SUBJECT COMPANY CONTRACT AWARDS
Radio Trunking Systems � PD/C0209/00 & PD/C0055/00
187. The audit report included an analysis of a systems contract for Radio trunking
systems, case number PD/C0209/00/RFP and found a lack of impartiality by
Mr. Bahel in the procurement process. The $36 million contract was ultimately
awarded to the Subject Company.
188. By way of background, prior to the systems contract there was a single purchase
bidding exercise for trunking systems for the mission in Kosovo. This
procurement exercise took place in 1999, case # PD/C0055/00.
189. In that procurement exercise, the Subject Company was one of four companies
to submit bids for this proposal, the others being Ericson, Nortel (Cogent) and
Motorola. After this evaluation, Cogent was the highest rated vendor with a
70% compliance rating, and the Subject Company was the lowest, considered
just 12.5% compliant. Ericsson was determined to be 57.28% compliant, and
Motorola 48.05%.
190. According to CITS officials interviewed by the PTF investigators, this rating
should have disqualified the Subject Company. However, according to several
CITS staff members, Mr. Bahel asked them to speak with Cogent and the
Subject Company, and to re-evaluate the Subject Company's bid and make the
the Subject Company proposal compliant. According to these witnesses, the
reason given by Mr. Bahel to conduct such a re-evaluation was that the Subject
Company submitted a bid that was significantly lower in cost that the remaining
bids. Mr. Bahel recently confirmed to PTF investigators that he held this
position at the time. The flagrant disregard to defer to the experts, and not take
into account the severe lack of technical acceptability, is not justified. It is
evident that Mr. Bahel exceeded his authority by this action.
191. At the same time, while CITS staff members stated that Mr. Bahel had initiated
the meetings with the Subject Company; the presentation to the HCC, signed by
Mr. Bahel, read that CITS had requested to meet with Cogent and the Subject
Company. Witnesses interviewed by PTF investigators have informed that Mr.
Bahel's statements in this regard were false. No CITS staff member with whom
PTF investigators spoke has confirmed Mr. Bahel's statement. In fact, all who
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have been interviewed stated that Mr. Bahel forced the issue, and insisted that
CITS discuss the evaluations with the Subject Company. Further, there is no
evidence of a direction to re-evaluate the other bidders, or to include them later
in the process.
192. In the interview with PTF investigators, Mr. Bahel has stated that the other
bidders were not invited as Cogent and the Subject Company were the lowest
bidders. Mr. Bahel defended his decision, and conceded that he had challenged
the technical evaluation by CITS because the price difference was so dramatic.
Mr. Bahel stated that he believed that a substantial savings to the Organisation
could have been achieved if the Subject Company's proposal had been made
compliant.
193. Mr. Bahel's reasoning appears shallow. Surely, there is more to the analysis of
the qualification of a vendor than mere cost. Such narrow reasoning calls into
question the need for a technical evaluation in the first instance, and appears to
render the reasoned opinion of the experts unnecessary. Further, in
consideration of his association with the representatives of the Subject
Company discussed more fully below, the validity of his reasoning is even more
questionable.
194. The next year, CITS sought solicitations for a new digital trunking radio
systems contract for its Missions in MONUC and UNTAET. An expression of
interest was posted by PD on its website in early May and a RFP 86 followed by
the end of May. Forty vendors registered with the PD were invited to submit
their proposals by 7 July 2000. By the bid-opening deadline, proposals were
received from CICCI, the Subject Company, Motorola, Ericsson, and Cogent.
Thirty days later CITS found all five submissions to be technically non-
compliant.
195. The vendors' non-compliance, however, turned out to be erroneous, and a
mistake on the part of the requisitioner. In subsequent discussions between PD
and DPKO, it was agreed that the systems offered by the bidders (with the
exception of CICCI) were representative of the technology then available in the
market and that the specification requested by CITS may have been too high. In
the face of an Immediate Operational Requirement, Mr. Bahel proposed to
request the original bidders to submit a "Best and Final Offer" (BAFO). On 8
August 2000 case officer Grace Montelibano issued a request for BAFO to the
Subject Company, Motorola, Ericson, and Cogent, with on opening date of 10
August 2000.
196. Again, PTF faced challenges in reconstructing the facts and circumstances of
the case due to lack of the condition of the procurement file. Consequently, the
PTF has had to rely on the memory of procurement officers involved. Whereas
the investigation discovered a draft and a final presentation to the HCC of 10
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August 2000, prepared by the case officer and signed by Mr. Bahel, PTF
investigators have not been able to locate any documents supporting BAFO
quotes submitted by the companies, other than the price matrix prepared by PD
for the presentation to the HCC.
197. While the case was assigned to Staff Member 8, the HCC minutes reflect the
presence of Messrs. Bahel and Staff Member 9 only. Interviews with the PD
officials failed to reveal the reasons for the absence of the buyer in the
presentation, or the identity of the actual presenter of the case to the HCC.
Neither Staff Member 9, nor Staff Member 8 could recall the reasons for her
absence. The Review of personnel records has shown that Staff Member 8 was
in the office during the dates in question.
198. Mr. Bahel told PTF that he could have "complemented the junior procurement
officer, but would have never supplemented him or her" in the HCC
presentation. In response to the question regarding the discount offered by the
Subject Company following its submission of BAFO, Mr. Bahel confirmed to
PTF investigators he contacted the vendor in the presence of another officer.
The purpose of the contact was to try to obtain another reduction in price from
the vendor. Moreover, Mr. Bahel asserted this price negotiation was done in full
compliance with the Procurement Manual and in light of the fact that the
Subject Company was then already the lowest bidder.
199. The HCC criticized Mr. Bahel for approaching the Vendor for a second time
without its specific instruction. Nevertheless, the HCC recommended the award
of a 3-year fixed price systems contract to the Subject Company. Based on the
record before it, the PTF cannot conclude that contacting the vendor a second
time before the HCC deliberation was in and of itself improper.
Mr. Bahel's Personal Relationship with the Kohlis
200. The investigation reveals that Mr. Bahel's relationship with the Kohlis runs
deep, and dates back to the 1980s. Mr. Bahel acknowledged that he met Nanak
Kohli at a gathering associated with an Indian civic Organisation in
Washington, D.C. when he was stationed there at the Indian Embassy.6 Further,
a search of Mr. Bahel's computer reveals a wedding invitation list. From the
list, it appears that Mr. Bahel invited Nanak Kohli and Nishan Kohli to his son's
wedding in India in June 2002, at the same time the Kohlis were acting on
behalf of vendors performing contractual services for the UN.
6
According to his personnel file, Bahel was employed by the Indian Government in Washington, D.C.
between 1980 and 1984.
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201. Mr. Bahel acknowledged sporadic contact with the Kohlis, but represented to
investigators in April 2006 that he had not spoken with the Kohlis in 18 months.
The PTF has proven this assertion to be false.
202. Further, numerous witnesses have described circumstances in which Nishan
Kohli was a frequent visitor to the UN Procurement Department, and to Mr.
Bahel's office, at times when the Kohlis were acting on behalf of company's
efforts to do business with the Organisation. Witnesses state that the Kohlis
would visit Mr. Bahel in his office, more than once a month. Multiple witnesses
have indicated that the frequency of such visits was improper.
THE NEW YORK CONDOMINIUM UNITS
203. Most significantly, however, the Kohlis provided Mr. Bahel with tangible and
intangible benefits during the relevant time period, including the purchase and
lease of two expensive New York condominium apartments on behalf of Mr.
Bahel. Prior to May 2003 Sanjaya Bahel was residing at 300 East 34 Street in
New York. In May 2003 Acumen International, a New York based company
incorporated by Nishan Kohli, sought to purchase two condominium apartment
units at 240 East 47th Street, Units 17E and 17F. Acumen International's
incorporation papers bore Nishan Kohli's accountant's address at the time, and
reflect that the company was incorporated in 2002. According to a
representative of the then owner of the East 47th Street units, Nanak and Nishan
Kohli viewed the apartment prior to purchase, as did Sanjaya Bahel. The
owner volunteered it was evident to him that the purchase of the units was to
allow Bahel to occupy them.
204. Indeed, the "Information Regarding Applicant" Form which accompanied the
purchase application submitted to the condominium Board reflected that Mr.
Sanjaya Bahel and Mrs. Neera Bahel were the prospective immediate occupants
of the units. Perhaps most significantly, the form requested the purchaser to
identify the nature of the relationship between the occupant and the prospective
owner, to which Mr. Bahel is listed by Nishan Kohli as a "business
consultant."
Figure 34
205. A representative of the company that owned the property informed PTF
investigators that the Kohlis made it clear to him that they intended to
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immediately provide the units to Mr. Bahel for him to occupy. The
representative used the name "Bahel" even before PTF investigators asked the
identity of the individual.
206. It is clear from the documentation and the owner's description of the individual
that the intended occupant was Mr. Bahel. Indeed, a photocopy of Mr. Bahel's
driver's license is contained in the application file. The investigation has
revealed that neither Nanak, nor Nishan Kohli sought to occupy or, in fact, lived
in these condominium units. It is evident that the individuals intended at the
inception of the transaction to occupy the units were Mr. Bahel and his family.
207. Incredibly, fees associated with the occupancy of the units were paid by
Acumen from the Thunderbird Industries bank account in Virginia.
Figure 35
208. According to the representative from Ammar, N.V., the entity which owned the
property, these fees were for the purposes of providing revenue for the
condominium board and were required whenever tenants or owners moved in or
out of the apartment. In the representative's experience, these fees were
typically paid by the individuals occupying the units, and were non-refundable.
209. When asked about the circumstances of his occupancy of these units, Mr. Bahel
failed to provide any of the aforementioned information. Rather, Mr. Bahel
stated to investigators that he did not know the owner of the unit and that he
negotiated for both the lease and ultimate purchase of the property with "a
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lawyer" and, when pressed further, he stated that he understood the lawyer to be
acting on behalf of a "mortgage company." Mr. Bahel was asked several times
whether he knew the owner of the units. However, Mr. Bahel never mentioned
Acumen or the Kohlis. Bahel asserted further that he paid $5000 a month in
rent for both of the units, and maintained an understanding with the lawyer that
he could purchase the units for a set amount at a later date. In effect, Mr. Bahel
asserted that a lease-purchase agreement was codified in separate
correspondence. However, Mr. Bahel has failed to produce any documentation
to support these assertions despite repeated requests of the PTF to produce the
information and records reflecting the lease payments. Based upon such a
failure to cooperate, the false assertions made by Mr. Bahel, and the facts and
circumstances of this case, there is serious question whether Mr. Bahel paid any
rent at all.
210. Even assuming for a moment that these assertions are accurate, it is evident that
Mr. Bahel nonetheless received a substantial benefit from the Kohlis. The lease
of these premises for a mere $5000 per month was well below the then
prevailing rates. In fact, the previous owner has provided documentation to the
PTF that he rented the units in 2000-01 for $8600 per month.
Figure 36
211. Further, Bahel was provided the units directly and was not required to compete
with any prospective lessees or purchasers. Contrary to his assertion that his
son learned of the availability of the property through an advertisement, it is
clear that he was involved in the Kohlis purchase from the inception, and even
viewed the apartments prior to the purchase by Mr. Kohli. In addition, real
estate professionals have informed the PTF that a lease purchase agreement in
2003 with a fixed purchase price at a future date in time is a substantial benefit
to the purchaser. Real estate values were increasing rapidly at the time, and
certainly had the potential to increase substantially over a two year period.
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212. Bahel ultimately "purchased" the units from the Kohlis in May 2005. The
properties were not listed with a broker for sale, and were not advertised.
Again, in connection with the purchase, Mr. Bahel claimed that he did not know
the owner, and dealt with the lawyer for the mortgage company. However, this
assertion is false. A review of the computer Mr. Bahel utilized at the time
reflects that he accessed a document about Acumen and the Kohlis. Further,
Nishan Kohli's name appears on the original deeds filed in May 2005 as does an
address of 600 NE 36 Street, PH11 Miami, Florida. Mr. Bahel's name is
prominently identified as the grantee. Further, the investigation has revealed
that the real property at the Florida address is owned by Hend Shuaib, who is
believed to be Nishan Kohli's wife. The investigation has further revealed that
Nishan Kohli and Hend Shuaib own a single family residence together as well
as a business, HN Projects, LLC, both located at 3820 Stuart Avenue, Miami,
Florida. (It is unclear what business this corporation engages in.)
Figure 37
213. According to the real estate deed, the purchase price for these units together was
$1,500,000. Mr. Bahel presented records which he claimed supported his
contention that he personally made a down payment of $135,000 towards the
purchase price. His UNFCU bank account statements reflect a $135,000
withdrawal in May 2005. Mr. Bahel claims that his sons provided the
remainder of the down payment. However, Mr. Bahel has not provided
supporting documentation for this contention. The investigation has revealed
that Mr. Bahel secured two separate mortgages in May 2005 from the UNFCU
in the amounts of $495,000, and $375,000, respectively. Proof has not been
provided concerning the source of the remaining $495,000 difference (between
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the combined mortgage amounts, Bahel's down payment, and remaining
balance). Mr. Bahel contends that this amount was provided by his sons.
214. Mr. Bahel's claim that he was unaware of the owner of the property is further
undermined by other investigative efforts of the PTF. A forensic examination
of Mr. Bahel's computer reveals that on 12 July 2005 Mr. Bahel accessed the
New York City property records system and researched the property deeds for
his residence. At this time, the Kohli name appeared on the deed. A subsequent
deed which removed Mr. Kohli's name was filed on 29 July 2005.
215. Regardless of the bona fides of Mr. Bahel's contentions, it is clear that the
Kohlis provided tangible benefit to Mr. Bahel, which he not only failed to
disclose but intentionally made false statements to PTF investigators about these
transactions. Certainly, an adverse inference can be drawn that Mr. Bahel knew
his actions were improper, and the representations were an attempt to disguise
the true circumstances of these transactions. This transaction is not only a direct
violation of several rules of the Organisation, but it also constitutes evidence
that Mr. Bahel participated in the efforts by Nanak and Nishan Kohli to achieve
UN contracts.
216. According to several DPKO officials who attended a function with Nishan
Kohli in late 2000 in Brindisi, Nishan Kohli stated words to the effect that he
had a procurement officer in his pocket and could achieve any UN contract he
wanted.
Bahel's Sons Wedding
217. Staff Member 5 added she was tasked by Mr. Bahel to prepare a printout of
invitees who would be attending his son's wedding. PTF investigators located
the computer formerly used by Sinon while at PD, successfully obtaining a copy
of the described wedding list. Both Nanak's and Nishan Kohli's names with
their addresses were included as invited guests of Mr. Bahel. As set forth herein,
the Kohlis were included on the guest list found on Mr. Bahel's computer.
PCP International and the Procurement of Generators
218. PCP International (PCP) is an India based engineering company which became
a registered vendor with the UN in 1998. In 2001 and again in 2002 PCP
sought to obtain contracts with the UN to provide generators to its Missions.
While PCP became a registered vendor for the UN in 19987, it had previously
provided goods to the United Nations Oil For Food Program (OFFP) in 1996.
Further, while PCP was registered with the Organisation to provide various
7
PCP International Vendor Registration File
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commodities, it was not registered to provide generators until 16 August 2003,
almost two months after PCP was awarded the generator contract on 20 June
2003. (RFP #118).8 Under procurement rules, it is clear that a company must be
registered for the commodity prior to the contract award.9
219. The investigation has revealed that despite the fact that PCP was not registered
to bid on generator contracts, PCP was invited to submit a proposal in March
2001 for RFP #86, and again in April 2002 for RPF #118. Staff Member 10, the
procurement officer responsible for the generator procurement exercise, offered
that while he could not recall this particular case, an invitation to bid could not
be made without supervisory approval. At this time, Mr. Bahel was Staff
Member 10' supervisor. According to Staff Member 10, Mr. Bahel would at
times review the list and verbally add companies for various reasons, none of
which would be documented.10
RFP 86
220. On 28 December 2000 Peter Phelan, Chief DPKO/FALD sent a letter to Sanjaya
Bahel, Chief of PD, requesting that PD seek a systems contract for generators.
The submission of FALD included a stipulation that only generators from large
and reputable generating set manufacturers be invited to bid, based upon a
perceived lack of ability of small companies to supply generators within
required delivery periods11. DPKO sought 4 specific types of engines and
alternators: Cummins, Volvo, Lister-Petter, Perkins, and Newage.12
221. On 18 January 2001 PD posted an Expression of Interest (EOI) on the UN
website.13 The EOI outlined the requirements for the generators. On 1 February
2001 a PCP International director, Mr. Arvind Sarin authored an email to Peter
Staples requesting inclusion in the RFP#86 bidding exercise in response to the
EOI. 14 As a result of the responses to the EOI, Peter Staples prepared an
invitee list comprising of 31 companies including PCP and the Subject
Company, neither which were, as of the date of the issuance of the RFP (2
March 2001), registered vendors to supply generators.15 On 14 March 2001 Mr.
Staples prepared the RFP with a closing date of 16 April 2001. The RFP was
8
PCP International Vendor Registration File PCP Letter Dated 16 August 2003
9
Staff Member 11 ROC- 27 June 2006 and Staff Member 12 ROC � 25 May 2006; A PTF investigator
requested from the UNPD, a list of all registered vendors for the generator commodity codes, 461100
Electric Motors, Generators and Transformers and Parts Thereof and 461130 Generating Sets, for the
period prior to 1 January 20039. PCP International was not listed on this report and therefore should have
been considered not to be registered for this commodity of generators.
10
Staff Member 10 ROC 6 June 2006
11
Memo P. Phelan to S. Bahel December 28, 2000 pg 1
12
RFP #86 SOW pg. 3
13
Expression of Interest PCS1168
14
PCP Email to Peter Staples 1 February 2001
15
RFP #86 2 March 2001 invitee list
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subsequently reviewed and approved by Mr. Bahel. Between 15-17 March 2001
the RFP was faxed to 31 companies from 15 different countries.16 Despite the
fact that Staff Member 2 was at the time responsible for IT procurement, he
served as the procurement officer for the solicitation for these generators. When
asked by PTF investigators why he had the case, Staff Member 2 responded that
he could not recall.17
222. On 21 March 2001 PCP sent an email to Mr. Bahel and then, on 30 March 2001,
to Mr. Sachdeva requesting the opportunity to submit an "alternate generator
brand called Kirloskar." Mr. Sarin represented that the Kirloskar brand could
meet the requirements of the SOW that he would like the opportunity to bid for
this RFP.18 On 2 April 2001 Mr. Sachdeva requested approval from Mr. Etsell
Chief of FALD/DPKO at the time for the Kirloskar brand, to which Mr. Etsell
replied "we have standardized these types of engines and alternators (sic) do not
intend to change the RFP to include another engine maker." 19 Approximately
one hour later Mr. Sachdeva forwarded the email to Mr. Bahel.
223. On 4 April 2001 Mr. Sachdeva sent an email to Mr. Bahel and Mr. Etsell stating
that Mr. Sachdeva and Mr. Bahel had spoken, and they had indicated that there
was agreement that the PCP could be included in the bid. The email read:
"Gentlemen, as mutually agreed by you telephonically day before yesterday, an
amendment has been issued for the generator requirement. An amendment is
sent to all 31 vendors on the list on 3 April 2001 stating the following.20
Figure 38
224. According to Mr. Sarin, with whom the PTF spoke, the amendment was issued
based on his request to Mr. Bahel and Staff Member 1021. This act seems to
contravene procurement department practice which requires several vendors
16
PO Staff Member 10 leaves the PD to go work in a UN mission in March 2001.
17
Staff Member 2 18 May 2006
18
Sarin PCP email to Sanjay Bahel 21 March 2001, Provision of sound-proof and weather proof
generating sets for the UNPK missions
19
Stephen Etsell email to Kanwar Sachdeva- 2 April 2001 3:08pm Re RFP 86 Urgent Clarification
Requested
20
RFPG-118 Amendment issued 3 April 2001
21
Sarin, PCP Director, ROC 4 July 2006; Note: Staff Member 10 was no longer with PD at this time.
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requesting a similar change that would result in an amendment as well as the
approval of the requisitioner be sought.
225. On 16 April 2001 eight companies submitted bids, including PCP which offered
Kirloskar generators. Thereafter, the technical proposals were sent to DPKO for
review and evaluation. DPKO's evaluation report was sent to PD on 24 May
2001, which concluded that the Subject Company and PCP had each offered the
same non-specified diesel engines � Kirloskar generators, and neither can meet
the required delivery schedule.22 Although DPKO had provided an evaluation
finding that PCP did not meet the delivery schedule, Mr. Sachdeva, in
consultation with Mr. Bahel, requested that DPKO re-evaluate these bids which
were "alternate proposals in accordance with their previous agreement to allow
vendors to propose alternative equipment."23 At first, DPKO refused to re-
evaluate the bid from PCP on the basis that PCP was offering an alternate brand
that was not specified in the RFP.24 From April through June 2001, multiple
emails and memoranda were exchanged between DPKO and PD over this issue,
and the debate reached the level of the Assistant Secretary General.
226. Further, email messages were exchanged between ASG Toh on behalf of PD,
and ASG Sheehan on behalf of DPKO, concerning the inclusion and evaluation
of these "alternate brands" by PCP25. A review of the file reflects a Note to the
File of 11 June 2001 from Mr. Chaudhary, an Engineer with DPKO,
memorializing the fact that Mr. Etsell of DPKO/FALD did not accept alternate
brand of generators, and opposed any amendments which stated otherwise.26 A
further 11 June 2001 email from DPKO to Mr. Sachdeva confirms DPKO's
position:
"If the requirement for alternate engines was added by PD without
the prior agreement of the requisitioner then it will not be
evaluated until it is clarified.... Etsell has stated that he as the
section chief never agreed to any such proposal from Mr. Bahel.27
22
Memo from Stephen Etsell to Larisa Babynina dated 24 May 2001 RFPG-86 Requirement for Generating
Sets
23
Sachdeva email to Etsell dated 29 May 2001, Sachdeva email to Sinha dated 9 June 2001 (note � Bahel
is currently away on annual leave in India during this time but email reflects that Sachdeva has spoken with
him in India)
24
Sachdeva and Chaudhary emails dated 29 May 2001, 6 June and 10 June 2001
25
RFP-86 file emails dated 24 May 2001 � 18 June 2001
26
DPKO file - Sheel Chaudhary Note to File 11 June 2001
27
Girish Sinha email to Sachdeva dated 11 June 2001
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Figure 39
227. Mr. Bahel thereafter responded:
FALD's argument to reject all other makes of engines outright ...
on the grounds of logistical issues thus does not appear to be
totally valid. (sic) The amendment PD issued was in full
consultation with FALD on the premise as brought out above..28
Figure 40
28
Sanjaya Bahel email to Girish Sinha dated 18 June 2001
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228. Staff Member 3 confirmed to PTF investigators that it was his responsibility to
ensure DPKO had dependable and quality generators as it was their "lifeline,"
and accordingly they wanted the top 4 brands with which they were already
fully familiar. Staff Member 3 further explained that in the event of a failure,
the Mission already had replacement parts for these models from the major
manufacturers. This argument did not sway Mr. Bahel or the PD. On 5 July
2001 on behalf of DPKO, Mr. Sheehan complained to Mr. Toh, the then acting
officer in charge of PD, about PD's position on the matter. Mr. Sheehan stated
that DPKO/FALD found PD's position unacceptable, and maintained their
desire for the four specified brands.29 Mr. Toh forwarded the email to Mr.
Bahel, with the reference: "Mr. Bahel � Sanjay please prepare draft response
(illegible)."30 As a result, Mr. Bahel sent a memo dated 17 July 2001 to Mr.
Toh purporting to explain PD's position:
FALD's request to require vendors to only quote for generators
with four specified makes ...was questioned by us. On their
insistence (sic) due to pressing urgency expressed, PD agreed to
issue the RFP with the specifications as requested. . .vendor
represented that they were in a position to offer generators with
other makes that meet . . . specifications required. PD did not do
amendment unilaterally. Irrespective at whose behest the RFP
permitted offers ... Organisation cannot decline to consider the
offer."31
Figure 41
29
Memo from Michael Sheehan ASG to Andrew Toh OIC 5 July 2001
30
Ibid
31
Memo from Sanjaya Bahel to Andrew Toh, 17 July 2001
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Use of the London Apartment
229. On 11 July 2001 in the midst of the procurement exercise in which PCP was a
participating vendor, PCP's executive officer, Mr. Sarin sent an email message
to Mr. Bahel referencing Mr. Bahel's request to use his London apartment while
on vacation there with his family. According to documents and various
correspondence obtained through the PTF's investigation, it is evident that Mr.
Bahel sought to use Mr. Sarin's apartment while in London during this period,
26 July 2001 through 11 August 2001.
Figure 42
230. PTF investigators interviewed Mr. Sarin. Mr. Sarin confirmed that PCP owns a
"corporate apartment/house" in London,32 and that in previous conversations
with Mr. Bahel the issue about the apartment had arisen. According to Mr.
32
Mr. Sarin was contacted at the London apartment telephone# � 44-20-8932-6953 and confirmed that PCP
did own the apartment in London which was used as corporate housing for guests and employees.
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Sarin, Mr. Bahel had asked him if his son, who was working as an intern in
London, could use PCP's apartment. According to Mr. Sarin, Mr. Bahel's son
picked up the keys but he did not know if Mr. Bahel had used the apartment.33
231. However, the investigation has revealed that Mr. Bahel did indeed travel to
London with his family during this time, and that the records from the
Organisation confirm that Mr. Bahel was on annual leave between 29 July and 4
August 2001.34 Further, prior to departure, Mr. Bahel's son wrote to him and
inquired if he would be travelling to London:
Figure 43
232. A review of Mr. Bahel's August 2001 UNFCU Visa statement reflects various
purchases in London, including charges for a rental car, and in-flight services
during the period of 29 July 2001 and 4 August 2001. While there are food and
rental car charges contained on the credit card statement, there is an absence of
hotel expenses. None of Mr. Bahel's 2001 statements in the possession of the
PTF reflect any such charge.35 Mr. Bahel confirmed that he was in London but
denied that he used this apartment during his visit stating he stayed with his
sister who lived in Manchester. However, he confirmed that his son had used
the apartment for several days while interning in London. Mr. Bahel stated that
his son only used this apartment as a "final resort" as there was no longer any
room available at the B&B where his son was staying and his son could not
afford the hotel rates of over 150 per night. However, the email sent by Mr.
Bahel's son did not include such an explanation.
233. Mr. Bahel stated that he asked Mr. Sarin if he could pay him for the use of the
apartment which Mr. Sarin refused, however, he provided Mr. Sarin with a
bottle of whisky as a token of thanks for his assistance with his son. Mr. Bahel
stated that he had never received anything of value or any gift from PCP.
However, it would appear that the use of the PCP apartment would be
considered a gift. (See Annex-Timeline for Detailed Information.)
33
Sarin ROC 4 July 2006
34
Sanjay Bahel annual leave records � Monday, 30 July - Thursday, 2 August
35
Sanjay Bahel UNFCU Visa Statements August 2001 - November 2001
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Figure 44
RFP 118 � Procurement of Generators
234. Months later, in April 2002, the DPKO sought another generator contract, and
PCP submitted a bid. Mr. Sarin was also involved in that exercise on behalf of
PCP. Previously, on 20 February 2002 Stephen Etsell- Chief, DPKO, again
requested that PD issue a tender for a systems contract for generators for the
various peacekeeping missions36. An EOI was placed on the UN website on 4
March 2002 which lasted for ten days. Again, PCP was included on the invitee
list despite failing to be registered with the Organisation for the provision of
generators.37
.
235. On 28 March 2002 the RFP was issued to 45 vendors, including PCP, with a
closing date of 30 April 2002.38 Three additional vendors were added in the next
several weeks resulting in 48 total recipients.39 On 17 April 2002, Mr. Sarin, on
behalf of PCP, sent an email message to Mr Bahel requesting a meeting with
him. Mr. Sarin stated "Mr. Kirloskar, Chairman of Kirloskar Limited
(manufacturer of the generators in PCP's bid) would like to meet as they will be
in town on April 22 and 23 [2002]."40 Mr. Bahel replied confirming the
36
Stephen Etsell memo to Christian Saunders (Chief, PD) 20 February 2002
37
RFP#118 file � INCO, Ingersoll Rand, Guangxi Yuchai and K. Arano & Co faxes. Four of the others
vendors added to the invitee list were requested to register indicating that there registry
information may have been checked, however, PCPs was not
38
RFP #118 Invitee List dated 28 March 2002
39
RFP #118 Invitee List dated 17 April 2002
40
Sarin email to Bahel dated 17 April 2002
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meeting on 23 April 2002 at 11:30am,41 seven days prior to the closing of the
RFP. The RFP closed on 30 April 2002 with eight vendors submitting
proposals, PCP being one of them.42 DPKO thereafter received all 8 company
technical proposals for their review and evaluation, and in May and June 2002
subsequently sent emails requesting further clarification from PCP and several
other vendors on their technical proposals. DPKO concluded that PCP was
technically compliant but offered an unknown brand of generator, Kirloskar,
and found that it did not meet other important criteria essential to the bid
including delivery timeframe, warranty and spare parts. DPKO stated:
Figure 45
236. DPKO again expressed their preference for other more well known brands of
generators.43 On 15 July 2002 Mr. Sarin of PCP sent Mr. Bahel an email
referencing the RFP and sought a meeting with Mr. Bahel and the General
Manager of Kirloskar on 29 July 2002."44
Figure 46
237. Officials within PD have informed the PTF that such a meeting with a vendor
during the evaluation period is inappropriate. It is also suspicious that the
41
Bahel email to Sarin dated 17 April 2002
42
Request for Proposal RFP#118 dated 28 March 2002;
43
Ibid
44
Sarin email to Bahel dated 15 July 2002 (source Bahel's hard-drive)
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request for the meeting was not routed through the case officer, and was
directed to Mr. Bahel himself. On 16 July 2002 Mr. Bahel responded:
"evaluation is currently under way ...expected completion of the same
negotiations will be required with Mr. Dhoot" and then confirms an
appointment on 29 July 200245.
Figure 47
238. However, the final determination had not been made by the requisitioner and the
Procurement Department, and between 17 July and 26 July 2002 procurement
officers were still communicating with vendors, including PCP, requesting
further clarification of technical proposals.
239. The investigation has not been able to confirm that a 29 July meeting was held,
however the case officer informed the PTF that she does not recall attending this
meeting, or being aware of it. However, the officer did relate to investigators
that there was an 1 August 2002 meeting with Mr. Chaudhary of DPKO and Mr.
Sarin of PCP wherein they discussed some of the commercial issues of
performance bonds.46
240. Well into August 2002 DPKO continued to express concerns about the
generators PCP was offering. Mr. Etsell stated:
Since PCP is a new vendor for the supply of generators, and the
offered Kirloskar make generators will be used for the first time,
45
Bahel email to Sarin dated 16 July 2003
46
Babynina ROC 6 July 2006; There are emails, letters and faxes that indicate that a meeting
was held on August 1st between Chaudhary-DPKO, Babynina- PD, Sarin-PCP and Mr.
Dhoot � Kirloskar, were the various concerns of DPKO regarding delivery schedule,
minimum stock, site inspection and performance bond issues were discussed and
finalized46
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their performance is unknown.... Necessary their performance
bond of at least 15%(sic).47
241. In response, Mr. Bahel challenged DPKO's standing to address these issues and
expressed the view that commercial matters are within the province of the
procurement department. DPKO disagreed, and represented to Mr. Bahel that
these issues should be "discussed and decided between DPKO and PD since the
vendor is being considered for the supply of a large quantity of generators for
the first time and the performance of the generators is unknown."48 The debate
continued. Mr. Bahel responded to Chaudhary on 5 August 2002:
Figure 48
242. The view of a number of procurement officers present at the time was that
DPKO was trying to "kill the contract" and the procurement department was
doing its best to protect this company, some of whom opined that they thought
the support was premised upon the fact that it was significantly less expensive.49
As procurement chief, Mr. Bahel's responsibility was to protect the
Organisation's interest. The Organisation's best interest should not be limited
to merely achieving the lowest cost, but also offering the contract to the most
qualified vendor. Further, protecting the integrity of the process is also in the
bests interests of the Organisation. In light of concerns, it seemed prudent,
47
Chaudhary email to Etsell dated 2 August 2002; Etsell email to Bahel dated 5 August 2002
48
Chaudhary email to Bahel dated 5 August 2002; Bahel email to Etsell and Chaudhary dated August 5,
2002
49
Staff Member 9, ROC
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rather than unnecessary, to require higher performance bonds and site
inspections.
243. As a result of DPKO's concerns about the reliability of the generators, a site
inspection did occur between 13 September and 16 September 2001 in Pune,
India which was attended by Mr. Bahel along with DPKO and Kirloskar
officials. Senior procurement officials have informed the PTF that typically the
line procurement officer would attend the site inspections.50 In this case,
Christian Saunders approved Bahel's request to travel to participate in the site
inspection. During the inspection, Staff Member 13 refused PCP's offer to pay
his hotel expenses.51 According to Mr. Sarin, PCP had made the hotel
arrangements but denied paying for Mr. Bahel or Staff Member 13.52 Staff
Member 13 confirmed that Mr. Bahel had stayed in the same hotel for the three
nights, but could not shed any light concerning the payment for Mr. Bahel's
occupancy.53 Mr. Bahel confirmed he stayed in the hotel. He however stated
that he paid for the room for all of his stay.54 Upon review of Mr. Bahel's
UNFCU Visa Statement, there is a charge for a hotel Taj Blue Diamond for
$188 on 16 September 2002. Current hotel rates at the Taj Blue Diamond are
$230 per night. Although requested from the hotel, the investigators were
unable to obtain the final invoice statement from the hotel for Mr. Bahel's stay
in 2002.
244. After the first inspection, DPKO felt that these generators would no longer be
considered as the inspection report listed many deficiencies in the workmanship
and quality.55 Staff Member 13 of DPKO stated that he did not believe that
PCP/Kirloskar should be awarded the contract because the quality of the
generators was substandard to the other European brands that they had been
using, and that they had submitted proposals for the current contract. In
addition, Staff Member 13 did not believe that the Kirloskar model would be as
reliable, a concern which later proved valid as many of problems occurred in the
field.56
245. Staff Member 3, OIC � Engineering Section, DPKO recalled that he informed
the procurement department that he did not think the generators would last, and
stated that they "were not value for money." Staff Member 3 also recalled
sending the first inspection report with a cover memo informing PD that DPKO
did not want these generators. This cover sheet was not located in the file.57
According to DPKO officers, typically when DPKO voiced complaints of other
50
Staff Member 11 ROC 27 June 2006
51
Staff Member 13 28 May 2006 and 14 June 2006
52
Sarin ROC 4 July 2006
53
Chaudhary email 19 July 2006
54
Bahel ROC 26 July 2006
55
Staff Member 3 ROC 22 June 2006
56
Staff Member 13 28 May 2006 and 14 June 2006
57
Staff Member 3 ROC 22 June 2006; Note � This cover memo was not found in the RFP or DPKO files
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systems' contracts, the contracts did not survive. Such was not the case here.
Staff Member 14, Chief of DPKO, told PTF investigators that he would not
normally get involved with these types of contracts, but because of the
stalemates and delays he interceded. In his view, Staff Member 14 believed that
there was pressure from Mr. Bahel as he had accused DPKO of racism for
opposing PCP. According to Staff Member 14, Mr Bahel accused DPKO of not
wanting to grant the contract to an Indian manufacturer. To the contrary, DPKO
officials expressed concerns about the quality of the proposed generators, which
was well documented in the files.
246. Staff Member 3 expressed the view that PCP was given a second chance to
improve the generators. In a memorandum from Staff Member 3 to Staff
Member 11 on 2 December 2002, Staff Member 3 wrote that "based on Mr.
Chaudhary's attached report PD is recommending PCP be given a second
opportunity to improve the workmanship and design of the generators."58 Staff
Member 11 confirmed that he suggested the second inspection. Staff Member 3
stated that he felt DPKO was pushed by PD to provide PCP a second
opportunity.59 Staff Member 14 further offered that it was unusual for a
contractor to receive a second chance to fix or make modifications to the
prototype. Staff Member 14 agreed with Staff Member 3 and stated that they
were "under pressure" to get the generators as this procurement exercise had
taken a long time.60 Both Staff Member 14 and Staff Member 3 stated that they
felt frustrated and were desperate to get generators due to critical operational
needs in the missions for these generators.61
247. Upon review of the generator bids, PCP was the lowest bidder, ahead of FG
Wilson and Coelmo.62 PCP was awarded the contract for a not to exceed value
of $3.5 million over 3 years.63 On 20 June 2003 the initial contract was signed
by Mr. Sarin of PCP and Mr. Saunders on behalf of the Organisation.64 One
month later, on 19 July 2003, Mr. Sarin sent Mr. Bahel an email referring to a
prior telephone conversation and providing the requested route information for
flights to Dublin and Istanbul. Mr. Sarin requests "Mr Bahel to advise of the
58
Staff Member 3 memo to Staff Member 11 through Adams dated 2 December 2002
59
Staff Member 3 ROC 22 June 2006
60
Staff Member 14, ROC 9 May 2006
61
Staff Member 14, ROC May 9, 2006; Stephen Etsell ROC 22 June 2006
62
RFP#118 PCP's bids for the prior RFP #86 and the current RFP#118 indicate that the
prices decreased from the early bid RFP #86 in 2001 to the current RFP #118 in 2002. If
PCP had submitted in the 2001 prices as seen in their RFP#86 bid they would not have
been the lowest bidder and would not have been granted the contract award. It is curious
that their bid prices significantly drop from 2001 to 2002 on average of $1,600 - $3,800
while the other companies prices had increased on average of $500.62
63
Staff Member 15 ROC 24 May 2006; HCC Meeting Minutes 6 May 2003
64
PD/CO0098/03 Contract dated 20 June 2003
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dates."65 According to Mr. Sarin, he provided Mr. Bahel with information
regarding flights on KLM as he was previously a travel agent for KLM. He
confirmed that he obtained special excursion fares for Mr. Bahel, made the
bookings and gave the contact name to Mr. Bahel for confirmation. However,
Mr. Sarin denied paying for the flights.66 A review of Mr. Bahel's visa
statements reflects rental car charges and purchases in Dublin and Istanbul
during the period of 30 August � 5 September 2003. The statements do not
reflect purchases for KLM airline tickets during this time period. According to
Mr. Bahel, he may have received flight information but tickets were purchased
by his wife through a travel agent she used in India. Mr. Bahel's version seems
to contradict facts Mr. Sarin conceded.
248. After the contract was issued in June 2003 the first generators were delivered in
September 2003. Some of the generators arrived damaged, and problems
thereafter continued to occur. The contract was ultimately cancelled in
December 2003. The contract was subsequently reinstated several months later,
and thereafter amended twice. Ultimately, the amount of the award increased
from the original $3.5 million to $9.9 million.
Bahel's Relationship with the Indian Government
249. Documents obtained from a search of Mr. Bahel's computer reveal that he
communicated with the Government of India and requested an extension of his
position. In the correspondence, he argued that his position should be continued
because he was well placed to further the interests of the Government. Further,
Mr. Bahel expressed his intention to assist companies from his country. In
March 2004 Mr. Bahel wrote to his Government, and represented the following:
65
Sarin email to Bahel dated 19 July 2003
66
Sarin ROC 4 July 2006
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Figure 48
250. Mr. Bahel principally asserts two claims in response to allegations that he
purposely favored, or steered contracts to, certain vendors or individuals. First,
Mr. Bahel asserts that a single procurement officer simply could not sufficiently
influence the process to achieve a certain outcome. Further, he asserts,
contested issues and complaints of requisitioners and vendors were routinely
vetted through OLA and input and guidance was regularly sought from OLA
lawyers. Mr. Bahel contends that he followed the guidance he ultimately
received.
251. Mr. Bahel's arguments are flawed. First, Mr. Bahel was a supervisory officer in
the PD, and often acted in an interim or acting capacity as the Chief. As such,
he wielded a great deal of authority within the department. While certainly Mr.
Bahel could not on each and every occasion guarantee a certain outcome, he
nevertheless was in a position to influence it. Further, it is not only the degree
of success which is achieved, but the effort to influence the process which also
is at issue.
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252. Equally without merit is Mr. Bahel's claims that OLA approved his ultimate
actions or that he simply was carrying out instructions and guidance from OLA.
The quality of the advice rendered was dependent upon the facts provided to
OLA. It is evident that on numerous occasions, OLA did not have a clear
picture of the circumstances because they relied on representations by Mr.
Bahel concerning the facts and circumstances of the matter. Mr. Bahel's
representations were often coloured. Further, OLA was principally asked to
provide advice and guidance on existing contract provisions. They did not
investigate matters, but relied upon the facts and circumstances presented to
them.
FINDINGS
The PTF concludes the following:
253. That the Subject Company was represented by Nanak and Nishan Kohli in its
bid to achieve substantial contracts from the Organisation, including IT
manpower staffing, laptop computers, desktop computers, trunking systems, and
satellite equipment. The Subject Company deferred to Nanak and Nishan Kohli
to execute the contract with the Organisation, and sub-contracted with GTI
without notifying or seeking approval from the Organisation for this
assignment, in violation of the contract. Nanak and Nishan Kohli, and GTI,
further violated the terms of the contract by failing to pay contract staff the full
amounts due and owing to them under the terms of the contract with the
Organisation. Through these acts, Nanak and Nishan Kohli, and GTI,
improperly enriched themselves.
254. That a scheme to defraud the Organisation existed between in or about 1999 to
2004, approximately. The scheme included the effort to achieve and maintain
valuable UN contracts, referred to throughout this report, through seeking to
improperly influence a UN procurement official, and achieving and converting
sums of money to the use of the participants of the scheme which were provided
to them by the Organisation pursuant to the contract. The participants of the
scheme included, but were not limited to, Mr. Nanak Kohli, Mr. Nishan Kohli,
GTI, En-Kay Associates, the Subject Company, PCP, Acumen International,
Mr. Arvind Sarin, and UN Staff Member Mr. Sanjaya Bahel.
255. That UN Staff Member Mr. Sanjaya Bahel participated in the scheme through
assisting the efforts of the Subject Company, PCP, Nanak and Nishan Kohli in
the Organisation's procurement process and exercises, defending these entities
in the wake of criticism and opposition from other branches of the Organisation,
making false statements to personnel in the Organisation, omitting critical facts
to such personnel, and improperly receiving tangible and intangible benefits
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from Mr. Nanak Kohli, Mr. Nishan Kohli, the Subject Company, PCP, and Mr.
Arvind Sarin.
256. That the Subject Company, GTI, Mr. Nanak Kohli and Mr. Nishan Kohli failed
to provide the required amount of subsistence payments (MSA) to its contract
staff in violation of the IT Staffing Contract, and improperly converted such
funds to their own benefit. Nanak Kohli and Nishan Kohli falsely represented to
the Organisation that such sums were in fact paid. These false statements were
made in furtherance of the scheme to defraud the Organisation.
257. That Mr. Nanak Kohli and Mr. Nishan Kohli, both agents of the Subject
Company, and Mr. Nishan Kohli, a principal of Thunderbird, participated in the
scheme by unlawfully seeking to influence and corrupt the procurement process
by making false statements, submitting false and fraudulent documents, and
bestowing tangible and intangible benefits upon UN Staff Member Mr. Sanjaya
Bahel, a supervisory procurement officer. The benefits bestowed upon Mr.
Bahel included, at the very least: a reduced rental fee for the premises located at
240 East 47th Street, Units 17E and F (condominiums); the discharge of moving
expenses which were otherwise required to be paid by the tenant occupying the
unit; a significantly reduced rental amount; and a favourable advantage in the
purchase of the unit, including a fixed and reduced price.
258. That based upon the totality of the circumstances, reasonable inferences to be
drawn therefrom, and in consideration of all the facts of the cases set forth
herein, the PTF concludes that UN Staff Member Mr. Sanjaya Bahel improperly
favoured, and assisted, Mr. Nanak Kohli and Mr. Nishan Kohli as well as Mr.
Arvind Sarin in their efforts to achieve valuable UN contracts, and thereby
compromised the integrity of the procurement process.
259. That UN Staff Member Mr. Sanjaya Bahel knowingly made false statements to
PTF investigators concerning the circumstances of his occupancy, lease and
purchase of the premises located at 240 East 47th Street, Unit 17E and F.
260. That the Subject Company representatives Mr. Nanak Kohli and Mr. Nishan
Kohli, and the Subject Company employee Mr. G.S. Chauhan, made knowing
materially false statements to the Organisation that the firm was complying with
the terms of the IT Staffing Contract, and omitted informing the Organisation of
material facts, namely that multiple assignments of the contracts were made.
261. That UN Staff Member Mr. Sanjaya Bahel suffered from a conflict of interest
by participating in a procurement exercise involving a company owned by the
Government of India when he continued an association with, and owed his
continued employment with the United Nations to, the Government of India.
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262. That UN Staff Member Mr. Sanjaya Bahel suffered from a conflict of interest in
that he participated in procurement exercises in which his personal friends,
Nanak and Nishan Kohli, and Arvind Sarin, represented the interests of the
vendors in the procurement exercises.
263. That UN Staff Member Mr. Sanjaya Bahel did not influence the vendor
registration process of Thunderbird.
CONCLUSIONS
264. UN Staff Member Mr. Sanjaya Bahel violated United Nations Staff Regulation
1.2(b) which requires staff members to uphold the highest standards of integrity
and impartiality.
265. UN Staff Member Mr. Sanjaya Bahel violated United Nations Staff Regulation
1.2(d) that prohibits staff members from accepting any instructions from any
Government;
266. UN Staff Member Mr. Sanjaya Bahel violated United Nations Staff Regulation
1.2(e) which requires staff members to pledge themselves to discharge their
functions with the interests of the Organisation only in view;
267. UN Staff Member Mr. Sanjaya Bahel violated United Nations Staff Regulation
1.2(g) which prohibits staff members from using their official office for private
gain, or the private gain of any third party, including family, friends and those
they favour;
268. UN Staff Member Mr. Sanjaya Bahel violated United Nations Staff Regulation
1.2(i) which requires staff members to exercise discretion with regard to all
matters of official business, and not communicate to others outside the
Organisation any information known to them by reason of their position, except
as appropriate in the course of their duties;
269. UN Staff Member Mr. Sanjaya Bahel violated UN Staff Regulation 1.2(m)
which provides that staff members shall not be actively associated with a
management of any business or other concern, where they may benefit from
such association by reason of his or her position;
270. UN Staff Member Mr. Sanjaya Bahel suffered from a conflict of interest by
participating in procurement exercises involving his personal friends, and a
company owned by a government with which he had a past, as well as present,
association.
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271. UN Staff Member Mr. Sanjaya Bahel participated in, and aided and abetted, a
scheme to defraud the Organisation in violation of Title 18, United States Code,
Sections 1343 and 2.
272. UN Staff Member Mr. Sanjaya Bahel improperly and unlawfully accepted
tangible and intangible benefits in consideration for advancing the interests of
vendors seeking to obtain contracts from the Organisation.
273. The company the Subject Company breached the IT Staffing Contract in failing
to advise, and seek the Organisation s approval, when assigning the IT Staffing
Contract.
274. Mr. Nanak Kohli and Mr. Nishan Kohli, both agents of the Subject Company,
and Mr. Nishan Kohli, a principal of Thunderbird, unlawfully conferred tangible
and intangible benefits upon UN Staff Member Mr. Sanjaya Bahel. These
benefits were fully accepted by UN Staff Member Mr. Sanjaya Bahel,
improperly, and unlawfully.
RECOMMENDATIONS
275. The PTF recommends this matter be referred to the appropriate departments in
the Organisation for action against UN Staff Member Mr. Sanjaya Bahel for
violations of the Staff Rules and Regulations.
276. The PTF recommends that the matter be referred to prosecutorial authorities in
the host country as well as in India for further investigation of the commission
of criminal offences.
277. The PTF recommends that appropriate action to be taken to recover the
financial losses to the Organisation occurred as a result of the matters detailed in
this report.
278. The PTF recommends that appropriate consideration should be given to whether
the actions of the various UN registered vendors warrant their removal from the
vendor registration list.
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